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Full text of "North Carolina Register v.6 no. 6 (6/14/1991)"

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The 
JSfORTH CAROLINA 

REGISTER 



IN THIS ISSUE 




EXECUTIVE ORDER 
FINAL DECISION LETTERS 

PROPOSED RULES 

Administrative Hearings 

Environment, Health, and Natural Resources 

Human Resources 

Justice 

Medical Examiners, Board of 

Nursing, Board of 

Public Education 



FINAL RULES 

List of Rules Codified 

ARRC OBJECTIONS 



RECEIVED 

JUN 21 1991 
EAW LIBRARY 



RULES INVALIDATED BY JUDICIAL DECISION 

ISSUE DATE: JUNE 14, 1991 
Volume 6 • Issue 6 • Pages 247-325 



INFORMATION ABOUT THE NORTH CAROLINA REGISTER AND ADMINISTRATIVE CODE 



NORTH CAROLINA REGISTER 

The North Carolina Register is published bi-monthly 
and contains information relating to agency, executive, 
legislative and judicial actions required by or affecting 
Chapter 150B of the General Statutes. All proposed, ad- 
ministrative rules and amendments filed under Chapter 
150B must be published in the Register. The Register 
will typically comprise approximately fifty pages per 
issue of legal text. 

State law requires that a copy of each issue be pro- 
vided free of charge to each county in the state and to 
\'arious state officials and institutions. The North CaroUna 
Register is available by yearly subscription at a cost of 
one hundred and five dollars ($105.00) for 24 issues. 

Requests for subscriptions to the North Carolina 
Register should be directed to the Office of Ad- 
ministrative Hearings, P. O. Drawer 27447, Raleigh, N. 
C. 27611-7447, Attn: Subscriptions. 

ADOPTION, AMENDMENT, AND REPEAL OF 
RULES 

An agency intending to adopt, amend, or repeal a rule 
must first publish notice of the proposed action in the 
North Carolina Register. The notice must include the 
time and place of the public hearing; a statement of how 
public comments may be submitted to the agency either 
at the hearing or otherwise; the text of the proposed 
rule or amendment; a reference to the Statutory 
Authority for the action and the proposed effective date. 

The Director of the Office of Administrative Hearings 
has authority to publish a summary, rather than the 
full text, of any amendment which is considered to be 
too lengthy. In such case, the full text of the rule con- 
taining the proposed amendment will be available for 
public inspection at the Rules Division of the Office of 
Administrative Hearings and at the office of the pro- 
mulgating agency. 

Unless a specific statute provides otherwise, at least 
30 days must elapse following publication of the pro- 
posal in the North Carolina Register before the agency 
may conduct the required public hearing and take ac- 
tion on the proposed adoption, amendment or repeal. 

When final action is taken, the promulgating agency 
must file any adopted or amended rule for approval by 
the Administrative Rules Review Commission. Upon ap- 
proval of ARRC, the adopted or amended rule must be 
filed with the Office of Administrative Hearings. If it 
differs substantially from the proposed form published 
as part of the public notice, upon request by the agen- 
cy, the adopted version will again be published in the 
North Carolina Register. 

A rule, or amended rule cannot become effective 
earlier than the first day of the second calendar month 
after the adoption is filed with the Office of Ad- 
ministrative Hearings for publication in the NCAC. 

Proposed action on rules may be withdrawn by the 
promulgating agency at any time before final action is 
taken by the agency. 

TEMPORARY RULES 

Under certain conditions of an emergency nature, 
some agencies may issue temporary rules. A temporary 
rule becomes effective when adopted and remains in 



effect for the period specified in the rule or 180 days 
whichever is less. An agency adopting a temporary ruh 
must begin normal rule-making procedures on the per 
manent rule at the same time the temporary rule u 
adopted. 

NORTH CAROLINA ADMINISTRATIVE CODE 

The North Carolina Administrative Code (NCAC) ii 
a compilation and index of the administrative rules o 
25 state agencies and 38 occupational licensing boards 
The NCAC comprises approximately 15,000 letter size 
single spaced pages of material of which approximate 
ly 35% is changed annually. Compilation and publica 
tion of the NCAC is mandated by G.S. 150B-63(b). 

The Code is divided into Titles and Chapters. Eacl 
state agency is assigned a separate title which is fui 
ther broken down by chapters. Title 21 is designate 
for occupational licensing boards. 

The NCAC is available in two formats. 

(1) Single pages may be obtained at a minimuri 
cost of two dollars and 50 cents ($2.50) for 1 
pages or less, plus fifteen cents ($0.15) per eac 
additional page. 

(2) The full publication consists of 53 volume 
totaling in excess of 15,000 pages. It is suj 
plemented monthly with replacement pages 
one year subscription to the full publication ii 
eluding supplements can be purchased fo 
seven hundred and fifty dollars ($750.00). Ii 
dividual volumes may also be purchased wit 
supplement service. Renewal subscriptions fo 
supplements to the initial publication availabli 

Requests for pages of rules or volumes of the NCA 
should be directed to the Office of Administrativ 
Hearings. 

NOTE 

The foregoing is a generalized statement of the pn 
cedures to be followed. For specific statutory languag 
it is suggested that Articles 2 and 5 of Chapter 150B 
the General Statutes be examined carefully. 

CITATION TO THE NORTH CAROLINA 
REGISTER 

The North Carolina Register is cited by volume, issu 
page number and date. 1:1 NCR 101-201, April 1, 19J 

refers to Volume 1, Issue 1, pages 101 through 201 
the North CaroUna Register issued on April 1, 1986 



North Carolina Register. Published bi-monthly by the 
Office of Administrative Hearings, P.O. Drawer 27447, 
Raleigh, North Carolina 27611-7447, pursuant to 
Chapter 150B of the General Statutes. Subscriptions 
one hundred and five dollars ($105.00) per year 

North Carolina Administrative Code. Published in 
looseleaf notebooks with supplement service by the 
Office of Administrative Hearings, P.O. Drawer 27447, 
Raleigh, North Carolina 27611-7447, pursuant to 
Chapter 150B of the General Satutes. Subscriptions 
seven hundred and fifty dollars ($750.00). Individual 
volumes available. 



NORTH 
CAROLINA 
REGISTER 



ISSUE CONTENTS 




Office of Administrative Hearings 

P. O. Drawer 27447 

Raleigh, NC 27611-7447 

(919) 733 - 2678 



Julian Mann III, 

Director 
James R. Scarcella Sr., 

Deputy Director 
Molly Masich, 

Director APA Services 



Staff: 

Ruby Creech, 

Publications Coordinator 
Teresa Kilpatrick, 

Editorial Assistant 
Jean Shirley, 

Editorial Assistant 



I. EXECUTIVE ORDER 

Executive Order 145... 



.247 



II. FINAL DECISION LETTERS 

Voting Rights Act 248 



III. PROPOSED RULES 

Administrative Hearings 

Hearings Division 310 

Environment, Health, and 
Natural Resources 

Coastal Management 299 

Environmental Management.... 271 

Forest Resources 300 

Wildlife Resources 
Commission 301 

Human Resources 
Medical Assistance 250 

Justice 
State Bureau of Investigation. ..250 

Licensing Boards 

Medical Examiners, Bi of 304 

Nursing, Bd. of 305 

Public Education 
Elementary and Secondary 303 

rV. FINAL RULES 

List of Rules Codified 314 

V. ARRC OBJECTIONS 318 

VI. RULES rWALIDATED BY 

JUDICIAL DECISION 322 

VII. CUMULATFVE INDEX 324 



NORTH CAROLINA REGISTER 

Publication Schedule 

(April 1991 - December 1992) 



Issue 


last Day 


Last Day 


Earliest 


* 


Date 


for 


for 


Date for 


Earliest 




Filing 


Electronic 


Public 


Effective 






Filing 


Hearing & 
Adoption by 
Agency 


Date 


++++++++ 


+♦*+++++ 


++++++++ 


+♦++++++ 


******** 


04/01/91 


03/11/91 


03/18/91 


05/01/91 


08/01/91 


04/15/91 


03/22/91 


04/01/91 


05/15/91 


08/01/91 


05/01/91 


04/10/91 


04/17/91 


05/31/91 


09/01/91 


05/15/91 


04/24/91 


05/01/91 


06/14/91 


09/01/91 


06/03/91 


05/10/91 


05/17/91 


07/03/91 


10/01/91 


06/14/91 


05/23/91 


05/31/91 


07/14/91 


10/01/91 


07/01/91 


06/10/91 


06/17/91 


07/31/91 


11/01/91 


07/15/91 


06/21/91 


06/28/91 


08/14/91 


11/01/91 


08/01/91 


07/11/91 


07/18/91 


08/31/91 


12/01/91 


08/15/91 


07/25/91 


08/01/91 


09/14/91 


12/01/91 


09/03/91 


08/12/91 


08/19/91 


10/03/91 


01/01/92 


09/16/91 


08/23/91 


08/30/91 


10/16/91 


01/01/92 


10/01/91 


09/10/91 


09/17/91 


10/31/91 


02/01/92 


10/15/91 


09/24/91 


10/01/91 


11/14/91 


02/01/92 


11/01/91 


10/11/91 


10/18/91 


12/01/91 


03/01/92 


11/15/91 


10/24/91 


10/31/91 


12/15/91 


03/01/92 


12/02/91 


11/07/91 


11/14/91 


01/01/92 


04/01/92 


12/16/91 


11/21/91 


12/02/91 


01/15/92 


04/01/92 


01/02/92 


12/09/91 


12/16/91 


01/31/92 


05/01/92 


01/15/92 


12/20/91 


12/31/91 


02/14/92 


05/01/92 


02/03/92 


01/10/92 


01/17/92 


03/04/92 


06/01/92 


02/14/92 


01/24/92 


01/31/92 


03/15/92 


06/01/92 


03/02/92 


02/10/92 


02/17/92 


04/01/92 


07/01/92 


03/16/92 


02/24/92 


03/02/92 


04/15/92 


07/01/92 


04/01/92 


03/11/92 


03/18/92 


05/01/92 


08/01/92 


04/15/92 


03/25/92 


04/01/92 


05/15/92 


08/01/92 


05/01/92 


04/10/92 


04/17/92 


05/31/92 


09/01/92 


05/15/92 


04/24/92 


05/01/92 


06/14/92 


09/01/92 


06/01/92 


05/11/92 


05/18/92 


07/01/92 


10/01/92 


06/15/92 


05'25/92 


06/01/92 


07/15/92 


10/01/92 


07/01/92 


06/10/92 


06/17/92 


07/31/92 


11/01/92 


07/15/92 


06/24/92 


07/01/92 


08/14/92 


11/01/92 


08/03/92 


07/13/92 


07/20/92 


09/02/92 


12/01/92 


08/14/92 


07/24/92 


07/31/92 


09/13/92 


12/01/92 


09/01/92 


08/11/92 


08/18/92 


10/01/92 


01/01/93 


09/15/92 


08/25/92 


09/01/92 


10/15/92 


01/01/93 


10/01/92 


09/10/92 


09/17/92 


10/31/92 


02/01/93 


10/15/92 


09/24/92 


10/01/92 


11/14/92 


02/01/93 


11/02/92 


10/12/92 


10/19/92 


12/02/92 


03/01/93 


11/16/92 


10/23,92 


10/30/92 


12/16/92 


03/01/93 


12/01/92 


11/06/92 


11/13/92 


12/31/92 


04/01/93 


12/15/92 


11/24/92 


12/01/92 


01/14/93 


04/01/93 



* The "Earliest Effective Date" is computed assuming that the public hearing 
and adoption occur in the calendar month immediately following the "Issue 
Date", that the agency files the rule with The Administrative Rules Review 
Commission by the 20th of the same calendar month and that ARRC approves 
the rule at the next calendar month meeting. 



EXECUTIVE ORDER 



EXECUTIVE ORDER NUMBER 145 

REALLOCATING THE COMMUNITY 

PENALTIES PROGRAM FROM THE 

DEPARTMENT OF CRIME 

CONTROL AND PUBLIC SAFETY TO THE 

DEPARTMENT OF CORRECTION 

Upon examination of the functions, powers, 
and duties of the Department of Crime Control 
and Public Safety related to the administration 
of the Community Penalties Program, it appears 
to be necessary for efficient administration and in 
the best interest of the State for the Community 
Penalties Program provided by Article 1 1 , Part 6 
of Chapter 143B of the North Carolina General 
Statutes to be reallocated from the Department 
of Crime Control and Public Safety to the De- 
partment of Correction; 



THEREFORE, pursuant to authority vested in 
me as Governor by Article III, Section 5(10) of 
the Constitution and North Carolina General 
Statutes Sections 143A-8 and 143B-12, it is OR- 
DERED: 

The Community Penalties Program provided 
by Article 11, Part 6 of Chapter 143B of the 
North Carolina General Statutes, is hereby real- 
located from the Department of Crime Control 
and Pubhc Safety to the Department of Cor- 
rection in the maruier described for a Type I 
transfer in North Carolina General Statute 
143A-6. 

Done in Raleigh, this the 30th day of May, 
1991. 



6:6 NORTH CAROLINA REGISTER June 14, 1991 



247 



VOTING RIGHTS ACT FINAL DECISION LETTERS 



[G.S. I20-30.9H, effective July 16, 1986, requires that all letters and other documents issued by the 
A ttorney General of the United States in which a final decision is made concerning a "change af- 
fecting voting" under Section 5 of the I'oting Rights Act of 1965 be published in the North Carolina 
Register. / 



U.S. Department of Justice 
Civil Rights Division 

JRD:LLT:TGL:rac 

DJ 166-012-3 Voting Section 

91-0843 P.O. Box 66128 

Washington, D.C. 20035-6128 



May 14, 1991 



Robert C. Cogswell, Jr., Esq. 

City Attorney 

P. O. Box 1513 

Fayetteville, North Carolina 28302-1513 

Dear Mr. Cogswell: 

This refers to fifteen annexations (Ordinance Nos. 90-2-324, 90-2-325, 90-5-326 to 330, 90-6-331 
to 334, 90-10-335, and 90-11-336 to 338) and the designation of the annexed areas to election districts 
for the City of Fayetteville in Cumberland County, North Carolina, submitted to the Attorney General 
pursuant to Section 5 of the Voting Rights Act of 1965, as amended. 42 U.S.C. 1973c. We received 
your submission on March 21, 1991. 

The Attorney General does not interpose any objection to the specilied changes. However, we 
note that Section 5 expressly provides that the failure of the Attorney General to object does not bar 
subsequent Litigation to enjoin the enforcement of the changes. See the Procedures for the Adminis- 
tration of Section 5 (28 C.F.R. 51.41). 



Sincerely, 



John R. Dunne 

Assistant Attorney General 

Civil Rights Di\ision 



By: 



J. Gerald Hebert 
Acting Chief, Voting Section 



24S 6:6 NORTH CAROLINA REGISTER June 14. 1 991 



VOTING RIGHTS ACT FINAL DECISION LETTERS 



U.S. Department of Justice 
Civil Rights Division 

JRD:LLT:AS:lrj 

DJ 166-012-3 Voting Section 

91-0939 P.O. Box 66128 

Washington, D.C. 20035-6128 



May 22, 1991 



DeWitt F. McCarley, Esq. 

City Attorney 

P. O. Box 7207 

Greenville, North Carolina 27835-7207 

Dear Mr. McCarley: 

This refers to three annexations [Ordinance Nos. 2286, 2287, and 2288 (1991)] and the designation 
of the annexed areas to election District 5 for the City of Greenville in Pitt County, North Carolina, 
submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act of 1965, as amended, 
42 U.S.C. 1973c. We received your submission on March 28, 1991. 

The Attorney General does not interpose any objection to the specified changes. However, we 
note that Section 5 expressly provides that the failure of the Attorney General to object does not bar 
subsequent litigation to enjoin the enforcement of the changes. See the Procedures for the Adminis- 
tration of Section 5 (28 C.F.R. 51.41). 

Sincerely, 

John R. Dunne 

Assistant Attorney General 

Civil Rights Division 



By: 



J. Gerald Hebert 
Acting Chief, Voting Section 



6:6 NORTH CAROLINA REGISTER June 14, 1991 249 



PROPOSED RULES 



TITLE 10 - DEPARTMENT OF HUMAN 
RESOURCES 



lyotice is hereby given in accordance with G.S. 
J SOB- J 2 that the Department of Human 
Resources! Division of Medical Assistance intends 
to amend rulefsj cited as 10 NCAC 50B .0204. 

1 he proposed effective date of this action is Oc- 
tober I. 1991. 

1 he public hearing will be conducted at 1:30 
p.m. on July 15, 1 99 1 at the Sorth Carolina Divi- 
sion of Medical Assistance, 1985 Umstead Dri\'e, 
Room 297. Raleigh. N.C. 27603. 



Co 



' omment Procedures: Written comments con- 
cerning this amendment must be submitted by July 
15, 1991, to: Division of Medical Assistance, 1985 
L'mstead Drh-e, Raleigh. .Worth Carolina 27603, 
ATT.X.: Bill Hottel, "aPA Coordinator. Oral 
comments may be presented at the hearing. In 
addition, a fiscal impact statement is available 
upon written request from the same address. 

CHAPTER 50 - MEDICAL ASSISTANCE 

SLBCIIAPTER SOB - ELIGIBILITY 
DETERMINATION 

SECTION .0200 - APPLICATION PROCESS 



.0204 

(a) 
lows: 

(1) 



(3) 



(4) 



EFFECTIVE DATE OF ASSISTANCE 

.Medicaid coverage shall be effective as fol- 

The month of application; or 

As much as three months prior to the 
month of application when the client re- 
ceived medical sen,'ices covered by the 
program and was eligible during the 
month or months of medical need; or 

If the client applies prior to meeting a 
non-fmancial requirement, Medicaid shall 
begin no earlier than the calendar month 
m which all non-fmancial requirements 
are met; or 

For pregnancy related ser\-ices under 
M-PW, the fifs4- month following Ae 
month ef application m sshich countabli? 
income i* oqual to ef k»« tlwft ik^ inoomo 
f . tandard. month of application or as 
much as three months prior to the month 
ol' application in which all eligibilitv re- 
quirements are met m the month or 
months. 



Authority G.S. 108A-54; 42 C.F.R. 435.914; 42 
C.F.R. 435.9/9. 

TITLE 12 - DEPARTMENT OF JUSTICE 

lyotice is hereby given in accordance with G.S. 
150B-12 that the North Carolina State Bureau of 
Investigation Division of Criminal Information in- 
tends to repeal rulefs) cited as 12 MC.4C 4 A 
.0101, .0104 - .0/05, .0306 - .0308; 4B .0/0/ - 
.0105, .020/ - .0202, .0204 - .0207; 4C .0/0/ - 
.0106, .0201 - .0203, .0205 - .0210; and adopt 
rulefsj cited as 12 NCAC4E .0101 - .0109, .0201 
- .0203, .0301 - .0307. .0401 - .0403; 4F .0101 - 
.0102, .0201 - .0203, .0301 - .0303, .040/ - .0408, 
.0501 - .0502, .0601, .0701, .0801; 4G .0101 - 
.0102, .0201 - .0204, .030/ - .0303, .0401. 

1 he proposed effective date of this action is Oc- 
tober 1, 199/. 

1 he public hearing will be conducted at 9:00 
a.m. on July 16. 1991 at The Division of Criminal 
Information, .Administrative Office, 407 ,\'. Blount 
Street, Raleigh. Sorth Carolina 2760/ . 



Co 



omment Procedures: Written comments and 
arguments should be submitted prior to July /6, 
/99/ to the Division of Criminal Information, 407 
N. Blount Street, Raleigh, Sorth Carolina 27601. 
Persons desiring to speak at the hearing are re- 
quested to notify the Division of Criminal Infor- 
mation at {9/9) 733-3/7/ prior to July /6, /991. 

CHAPTER 4 - DIVISION OF CRI.MIN.\L 
INF0RM.\T10N 

SUBCHAPTER 4A - ORGANIZATION.\L RULES 

SECTION .0100 - GENERAL PROVISIONS 

.0101 NAME .AND LOCATION (REPEALED) 

Statutory .Authority G.S. //4-/0; //4-/0./. 

.0104 FUNCTION OF POLICE INFOR.MATION 
NET%VORK (REPEALED) 

Statutory Authority G.S. //4-/0; //4-/0./. 

.0105 DEFINITIONS (REPEALED) 

Statutory .Authority G.S. //4-/0; 1/4-/0./. 

SECTION .0300 - STATISTICAL .\ND FIELD 
SUPPORT DIVISION 

.0306 UCR MANUAL AND FOR.MS 



250 



6:6 NORTH CAROLINA REGISTER June 14, 1991 



PROPOSED RULES 



(REPEALED) 
.0307 INTERNAL RECORDS KEEPING 
SYSTEM (IRKS) (REPEALED) 

Statutory Authority G.S. 114-10; 1 14-10. 1. 

.0308 INCIDENT BASE MANUALS AND 
FORMS (REPEALED) 

Statutory Authority G.S. 114-10; 1 14-10. 1. 

SUBCHAPTER 4B - POLICE INFORMATION 

NETWORK STANDARDS: AGREEMENTS: AND 

MANAGEMENT CONTROL 

SECTION .0100 - STANDARDS AND 
AGREEMENTS 

.0101 CERTIFICATION OF TERMINAL 

OPERATORS (REPEALED) 
.0102 REVOCATION OF PIN CERTIFICATION 

(REPEALED) 
.0103 POLICE INFORMATION NETWORK 

TERMINAL OPERATOR'S MANUALS 

(REPEALED) 
.0104 USER'S AGREEMENT (REPEALED) 
.0105 RENTAL AGREEMENT (REPEALED) 

Statutory Authority G.S. 114-10; 1 14-10.1. 

SECTION .0200 - MANAGEMENT CONTROL 

.0201 DIRECTOR OF PIN (REPEALED) 
.0202 POLICE INFORMATION NETWORK 

ADVISORY POLICY BOARD (REPEALED) 

Statutory' Authority G.S. 114-10; 114-10.1. 

.0204 MANAGEMENT CONTROL BY 

CRIMINAL .lUSTICE AGENCY OR 

BOARD (REPEALED) 
.0205 PIN TERMINAL OPERATOR 

(REPEALED) 
.0206 EMPLOYMENT SCREENING 

(REPEALED) 

Statutory Authority G.S. 114-10; 114-10.1. 

.0207 ELIGIBILITY FOR PIN TERMINAL 
(REPEALED) 

Statutory Authority G.S. 114-10: 114-10.1. 

SUBCHAPTER 4C - SECURITY AND PRIVACY 

SECTION .0100 - PROGRAM AND AGENCY 
SECURITY 

.0101 PROTECTION OF POLICE 

INFORMATION NETWORK CENTRAL 
SITE (REPEALED) 

.0102 PROTECTION OF POLICE 

INFORMATION NETWORK TERMINAL 



SITE (REPEALED) 
.0103 DATA STORAGE ENTRY (REPEALED) 
.0104 TERMINAL AND AGENCY 

IDENTIFICATION (REPEALED) 
.0105 INFORMATION COLLECTED AND 

STORED (REPEALED) 
.0106 EXCLUDED INFORMATION 

(REPEALED) 

Statutory Authority G.S. 114-10; 114-10.1. 

SECTION .0200 - ACCESS AND 

DISSEMINATION OF COMPUTERIZED 

CRIMINAL INFORMATION 

.0201 ACCESS TO PIN INFORMATION 

(REPEALED) 
.0202 RESEARCH USE AND ACCESS OF 

COMPUTERIZED CRIMINAL 

INFORMATION (REPEALED) 
.0203 LIMITS ON CRIMINAL JUSTICE 

RESEARCH (REPEALED) 

Statutory Authority G.S. 114-10; 114-10.1. 

.0205 INDIVIDUAL'S REVIEW OF 
COMPUTERIZED CRIMINAL 
INFORMATION (REPEALED) 

Authority G.S. 114-10; 114-10.1; 40 F.R. 22114. 

.0206 DISSEMINATION OF CRIMINAL 

HISTORY INFORMATION (REPEALED) 
.0207 AUDIT (REPEALED) 

Authority G.S. 114-10; 114-10.1; 28 C.F.R. IB 
20.21; 28 C.F.R. IC 20.33. 

.0208 USE OF CCH FOR LICENSING AND 

EMPLOYMENT PURPOSES (REPEALED) 
.0209 RESTRICTIVE USE OF CCH FOR 

LICENSING OR EMPLOYMENT 

(REPEALED) 
.0210 DISSEMINATION OF DRIVER 

HISTORY INFORMATION (REPEALED) 

Authority G.S. 114-10; 114-10.1; 28 C.F.R. IC 
20.33. 

SUBCHAPTER 4E - ORGANIZATIONAL RULES 
AND FUNCTIONS 

SECTION .0100 - GENERAL PROVISIONS 

.0101 NAME AND LOCATION 

(a) The name of this agency shall be the North 
Carolina State Bureau of Investigation Division 
of Criminal Information. 

(b) The acronym used for this agency shall be 
DCI. 

(c) The Administrative Office of DCI is located 
at 407 North Blount Street, Raleigh, North 



6:6 NORTH CAROLINA REGISTER June 14, 1 991 



251 



PROPOSED RULES 



Carolina, 27601. The telephone number for the 
agency is (919) 733-3171. 

Statutory Authority G.S. 114-10; 114- 1 0.1. 

.0102 FUNCTION OF DCI 

(a) DCI is responsible for the collection, stor- 
age and dissemination of information that wiU 
assist criminal justice and law enforcement agen- 
cies in the performance of their duties. DCI 
serves as a central tellecommuncations center 
linking local, state and national criminal justice 
and law enforcement agencies for the purposes 
of coUecting, organizing and retrieving data on 
crimes and criminals. The central computer 
network operates 24 hours a day, seven days a 
week. 

(b) The DCI computer provides linkage with 
the following computer systems: 

(1) National Crime Information Center 
(NCICj; 

(2) National Law Enforcement Telecommu- 
nications System (NLETS); and 

(3) North Carolina Division of Motor Vehi- 
cles (DMV). 

(c) Subscribers to DCI are provided with the 
capability to; 

(1) transmit or receive any law enforcement 
related message to any terminal cormected 
to DCI; 

(2) enter into and retrieve information from 
DCI's reco\ered vehicle and state wanted 
persons files. The means is also provided 
to inquire into DCI's certified operator, 
certification enrollment, Uniform Crime 
Reporting (L'CR) and Incident Base (I- 
Base) files; 

(3) enter into and retrieve information from 
NCIC's stolen and recovered property, 
wanted person and missing person files; 

(4) access NCIC's criminal history data re- 
ferred to as the Interstate Identification 
Index (III); 

(5) obtain, on a need-to-know basis, the re- 
cord of an individual by inquiring into the 
state Computerized Criminal History 
(CCH) file maintained by DCI, or CCH 
files maintained by other states and the 
Federal Bureau of Investigation (FBI) 
through the NCIC Interstate Identifica- 
tion Index (III); 

(6) communicate with terminals in other 
states through NLETS with the capability 
to exchange registration information, 
criminal history record information, and 
other law enforcement related informa- 
tion; 



(7) obtain information on North Carolina 
automobile registration, driver's license 
information and driver's history by ac- 
cessing state maintained files; and 

(8) obtain registration information on all 
North CaroHna registered boats, and to 
inquire about aircraft registration and air- 
craft tracking. 

(d) DCI is responsible for the administration 
of the Uniform Crime Reporting/Incident Base 
Program in North Carolina. Under these pro- 
grams, DCI collects, analyzes and publishes 
statewide crime statistics for comparison pur- 
poses, legislative proposals, budgetary analysis, 
crime pattern comparison, planning and statis- 
tical research purposes. 

(e) DCI maintains information on management 
and evidence tracking services for the North 
Carolina Department of Justice. 

Statutory Authority G.S. 114-10; 1 14-10. 1. 

.0103 AUTHORITY 

The Division of Criminal Information, through 
the statutory authority granted the North 
Carolina Attorney General in G.S. 114-10.1, is 
empowered to adopt the necessary regulations 
and to take the appropriate steps to enforce these 
procedures. 

Statutory Authority G.S. 114-10; 1 1 4- 10. 1. 

.0104 ORGANIZATION 

(a) Administratively DCI is supervised by an 
SBI Assistant Director, who is responsible to the 
Director of the State Bureau of Investigation. 
The SBI Assistant Director for DCI approves 
rules, regulations, and policies established for the 
Division and is also responsible for each of the 
five sections: Administrative Services, Computer 
Operations, Computer Systems, Identification, 
and Crime Reporting and Field Services. 

(b) The Administrative Services Section is re- 
sponsible for the business management, ac- 
counting, mail, terminal billing, statistical 
research and publications, and other administra- 
tive functions. 

(c) The Computer Operations Section is re- 
sponsible for monitoring the central site 
mainframe computer on a 24 hour basis and 
must insure that DCI is functionally able to dis- 
charge its assigned duties at all times. 

(d) The Computer Systems Section is respon- 
sible for the design, development, and mainte- 
nance of current computer software programs 
and new software requirements. 

(e) The Identification Section has the primary 
responsibility of collecting, compiling and auto- 



252 



6:6 NORTH CAROLINA REGISTER June 14, 1 99 1 



PROPOSED RULES 



mating criminal history record information sub- 
mitted by North Carolina criminal justice 
agencies. 

(f) The Crime Reporting and Field Services 
Section is responsible for receiving, reviewing and 
entering the state's crime data from law enforce- 
ment agencies, providing specialized training 
programs to criminal justice agencies throughout 
the state, and performing field audits of law 
enforcement and criminal justice agencies to de- 
termine compliance with DCI and NCIC re- 
quirements. 

(g) Where applicable the SBI Assistant Direc- 
tor for DCI is responsible for insuring compli- 
ance to federal rules and regulations mandated 
by NCIC. 

Statutory Authority G.S. 114-10; 1 14-10. 1. 

.0105 ADVISORY POLICY BOARD 

(a) The DCI Advisory Policy Board shall con- 
sist of not less than 13 members selected by the 
SBI Assistant Director for DCI for recommen- 
dation to the Director of the SBI with approval 
by the North Carolina Attorney General. 
Members shall serve for a term of two years. 
Membership shall consist of four police chiefs, 
four sheriffs, one representative each from the 
State Highway Patrol, Administrative Office of 
the Courts, Department of Correction, Division 
of Motor Vehicles (Enforcement), and the SBI 
Assistant Director for DCI. The SBI Assistant 
Director for DCI may serve as Chairman of the 
Board. The Board shall meet at least twice each 
year on dates and at locations determined by the 
SBI Assistant Director for DCI. If any Advisory 
Policy Board member or their designated repre- 
sentative is absent for two consecutive meetings, 
that member shall relinquish membership on the 
Board for the remainder of that term. Notifica- 
tion of such loss of membership shall be made 
by the SBI Assistant Director for DCI. The SBI 
Assistant Director for DCI may designate a re- 
placement member to serve for the remainder of 
that term. 

(b) The Board shall advise and make recomm- 
endations to the SBI Assistant Director for DCI 
regarding the philosophy, rule making, organiza- 
tion and operation of DCI. Minutes of each 
Advisor>' Policy Board meeting shall be recorded 
and mailed to each criminal justice agency in 
North Carolina. 

(c) The Advisory Policy Board shall also de- 
termine and recommend all penalties applicable 
to any agency or agency employee with regard to 
a violation of any of DCI's rules. 



(d) The Advisory Policy Board shall hear all 
appeals by agencies or individuals that have vio- 
lated DCI's rules. The appeal shall be conducted 
as an informal hearing. 

(e) The Advisory Policy Board shall provide 
advice to the SBI Assistant Director for DCI 
when requested pursuant to the provisions of 
Subchapter 4F Rule .0407 of this Chapter. 

(f) The Advisory Policy Board shall hear re- 
quests for reinstatement of services suspended 
pursuant to Subchapter 4G Rule .0101(l)(e) of 
this Chapter. 

Statutory Authority G.S. 114-10; 114-10.1. 

.0106 DCI WORKING GROUP 

(a) The DCI Working Group shall include 
representatives from interested law enforcement 
and criminal justice agencies. 

(b) The Working Group shall meet at the dis- 
cretion of the SBI Assistant Director for DCI for 
the purpose of presenting proposals, changes, 
enhancements, and updates regarding the DCI 
on-line network, or any of its other services. 

(c) The Working Group shall also offer sug- 
gestions and/or recommendations to be consid- 
ered by the Advisory Policy Board and the DCI 
for incorporation into the DCI's policies or op- 
erations. 

Statutory Authority G.S. 114-10; 114-10.1. 

.0107 DEFINITIONS 

The following definitions shall apply through- 
out Chapter 4 of this Title: 

(1) "Administration of Criminal Justice" 
means the performance of any of the fol- 
lowing activities: detection, apprehension, 
detention, pretrial release, post-trial release, 
prosecution, adjudication, and correctional 
supervision or rehabihtation of accused 
criminal offenders. The administrative of 
criminal justice shall include criminal iden- 
tification activities and the collection, stor- 
age, and dissemination of criminal history 
record information. 

(2) "Administrative Message" means messages 
that may be used by DCI terminal operators 
to exchange official information of an ad- 
ministrative nature between in-state law 
enforcement/criminal justice agencies and 
out-of-state agencies by means of NLETS. 

(3) "Authorized Requestor" means any person 
who is authorized and/or approved to re- 
ceive state and/or national criminal history 
data by virtue of being: 

(a) a member of an approved law 

enforcement/criminal justice agency; or 



6:6 NORTH CAROLINA REGISTER June 14, 1991 



253 



PROPOSED RULES 



(b) any DC I or NCIC authorized non- 
criminal justice agency pursuant to local 
ordinance or a state or federal law. 

(4) "Automated Fingerprint Identification 
System" (AFIS) means a computer based 
system for reading, encoding, matching, 
storage and retrieval of fmgerprint minutiae 
and images. 

(5) "CCH" means computerized criminal his- 
tory. 

(6) "Criminal History Record Information" 
(CHRl) means information collected by and 
maintained in the files of criminal justice 
agencies concerning individuals, consisting 
of identifiable descriptions, notations of ar- 
rest, detentions, indictments or other formal 
criminal charges. This also includes any 
disposition, sentencing, correctional super- 
vision, and release information. This term 
does not include identification information 
such as fingerprint records to the extent that 
such information does not indicate formal 
involvement of the individual in the criminal 
justice system. 

(7) "Criminal Justice Agency" means the 
courts, a government agency, or any subunit 
thereof which performs the administration 
of criminal justice pursuant to statute or 
executive order and which allocates over 50 
percent of its annual budget to the adminis- 
tration of criminal justice. 

(8) "Criminal Justice Board" means a board 
composed of heads of law 
enforcement/criminal justice agencies which 
have management control over a communi- 
cations center. 

(9) "DCI" means Division of Criminal Infor- 
mation. 

(10) "DCI Manual" means a manual contain- 
ing guidelines for users on the operation of 
the DCI equipm.ent and providing explana- 
tions as to what information may be ac- 
cessed through the DCI. 

(11) "Direct Access" means an authorized 
agency has access to the DCI network 
through a DCI terminal or through a com- 
puter interface. 

(12) "Disposition" means information on any 
action which results in termination or inde- 
terminate suspension of the prosecution of 
a criminal charge. 

(13) "Driver's History" means information 
maintained on individual operators to in- 
clude name, address, date of birth, license 
issuance and expiration information or con- 
trol number issuance information, and 
moving vehicle violation convictions. 



(14) "Dissemination" means any transfer of 
information, whether orally, in writing, or 
by electronic means. 

(15) "DMV" means the North Carolina Divi- 
sion of Motor Vehicles. 

(16) "Expunge" means to remove criminal 
history record information from the DCI 
and FBI computerized criminal history and 
identification fdes pursuant to state statute. 

(17) "Full Access" means the ability of a ter- 
minal to access those programs developed 
and administered by the DCI for local law 
enforcement and criminal justice agencies 
specifically including state and national 
CCH and driver history access. 

(18) "FuH-certLfication" means being operator 
certified with the ability and knowledge to 
use the DCI terminal accessing those pro- 
grams which are developed and administered 
by DCI for local law enforcement and 
criminal justice agencies. 

(19) "Hardware" means the physical computer 
equipment or devices and the peripheral 
equipment forming the DCI information 
processing system including the Automated 
Fingerprint Identification System (AFIS). 

(20) "Ilot Files" means DCI/NCIC files which 
contain information on stolen and recovered 
property and wanted/missing persons as en- 
tered by agencies across the nation. 

(21) "Inappropriate Message" means any mes- 
sage which is incomplete, unnecessary, ex- 
cessive, abusive, or not in keeping with the 
rules and regulations of DCI. 

(22) "Incident Base" is a system used to collect 
criminal offense and arrest information for 
each criminal offense reported. 

(23) "Indirect Access" means access to DCI 
through another agency's direct access ter- 
minal. 

(24) "In-service Certification" means an oper- 
ator's certification program provided by lo- 
cal departments and approved by DCI to 
certify and/ or re-certify their employees. 

(25) "Interstate Identification Index (III)" 
means the FBI's files containing identifying 
information on persons who have been ar- 
rested in the United States for which 
fmgerprints have been submitted to and re- 
tained by the FBI. 

(26) "Interface" means a method (either soft- 
ware or hardware) to communicate between 
two computers or computer systems. 

(27) "IRKS" means an internal records keeping 
system which DCI makes available to North 
Carolina criminal justice agencies. Included 
in IRKS is a jail record keeping svstem 
(JRKS). 



254 



6:6 NORTH CAROLINA REGISTER June 14, 1991 



PROPOSED RULES 



(28) "JRKS" means a jail record keeping sys- 
tem that aids agencies in accounting for their 
jail detainees. 

(29) "Limited Access" means the ability of a 
terminal to access those programs which are 
developed and administered by the DCI for 
local law enforcement and criminal justice 
agencies specifically excluding state and na- 
tional CCH and driver history access. 

(30) "NCIC" means the National Crime In- 
formation Center which is maintained in 
Washington, D.C. by the FBI. 

(31) "Need-to-know" means for purposes of 
the administration of criminal justice or for 
purposes of criminal justice agency employ- 
ment. 

(32) "NLETS" means National Law Enforce- 
ment Telecommunications System, which is 
maintained in Phoenix, Arizona. 

(33) "Non-criminal Justice Agency" means any 
agency or organization which is not eligible 
for full access to DCI. 

(34) "Non-criminal Justice Information" 
means information that does not directly 
pertain to the necessary operation of a law 
enforcement/criminal justice agency. 

(35) "Official Record Holder" means the eligi- 
ble agency that maintains the master doc- 
umentation and all investigative 
supplements of the hot file entry. 

(36) "Operator Identifier" means a unique 
identifier assigned by DCI to all certified 
operators which is used for gaining access to 
the DCI network and for the identification 
of certified operators. 

(37) "Ordinance" means a rule or law 
promulgated by a governmental authority 
especially one adopted and enforced by a 
municipality or other local authority. 

(38) "ORI" means originating routing identi- 
fier, which is a unique alpha numeric iden- 
tifier assigned by NCIC to each authorized 
criminal justice agency, identifying that 
agency in all computer transactions. 

(39) "Re-certification" means renewal of an 
operator's initial certification every 24 
months. 

(40) "Right-to-know" means for the purpose 
of an individual to inspect his or her own 
record or for other purposes as set forth by 
statute or court order. 

(41) "Secondary Dissemination" means the 
transfer of CCH information to another 
agency in addition to the inquiring agency. 

(42) "Servicing Agreement" means an agree- 
ment between a terminal agency and a non- 
terminal agency to provide DCI terminal 
services. 



(43) "State" means any state of the United 
States, the District of Columbia, the Com- 
monwealth-of Puerto Rico and any territory 
or possession of the United States. 

(44) "Statute" means a law enacted by a state's 
legislative branch of government. 

(45) "Switched Message" means messages that 
may be used by DCI terminal personnel to 
exchange official information between law 
enforcement/criminal justice agencies within 
North Carolina. 

(46) "Terminal" means a video screen with a 
typewriter keyboard used by DCI to ac- 
complish message switching, DMV in- 
quiries, functional messages, and DCI, 
NCIC, NLETS on-line file transactions. 

(47) "UCR" means a Uniform Crime Report- 
ing program to collect a summary of crimi- 
nal offense and arrest iriformation. 

(48) "Unapproved need-to-know" means any 
reason for requesting criminal or driver's 
history data which is not within the scope 
of authorized purpose codes as defmed in 
the DCI on-line manual. 

(49) "User Agreement" means an agreement 
between a terminal agency and DCI 
whereby the agency agrees to meet and fulfill 
all DCI rules and regulations. 

Statutory Authority G.S. 114-10; 114-10.1. 

.0108 FOR\lS 

(a) DCI maintains and supplies a variety of 
forms for the gathering of statistical information, 
the orderly housing of records, and participation 
in the fingerprinting process. Forms maintained 
and supplied by DCI are as follows: 

(1) Uniform Crime Reporting (UCR), and 
Incident Base (I- Base). This is a series 
of forms used to collect local criminal of- 
fense and arrest information for statistical 
analysis and publication; 

(2) Internal Records Keeping System (IRKS). 
These forms are specifically designed to 
provide a basic system of documenting 
criminal investigation and arrest activity; 

(3) Jail Records Keeping System (JRKS). 
This is a system of forms designed to en- 
able agencies to adequately account for 
jail detainees and their belongings; 

(4) Fingerprint Cards. These forms are pro- 
vided to allow agencies to submit 
fmgerprint cards on individuals processed 
through the criminal justice system to the 
SB I pursuant to statute. 

(b) These forms with the exception of 
fmgerprint cards, are fumished by DCI to agen- 
cies participating in the UCR and I-Base pro- 



6:6 NORTH CAROLINA REGISTER June 14, 1991 



255 



PROPOSED RULES 



grams and may be obtained by sending a 
completed preformatted screen over the DCI 
terminal or by contacting the Administrative Of- 
fice of DCI listed m Rule .0101 Paragraph (c) of 
this Section. 

(c) Fingerprint cards and forms may be ob- 
tained by sending a completed preformatted 
screen over the DCI terminal or by mailing a 
completed order form to the address indicated on 
the form ordered. 

Statutory Authority G.S. 114-10; 114- 10.1. 

.0109 MANLALS 

(a) DCI furnishes manuals relating to statistical 
information and record keeping. These manuals 
are provided upon request to any criminal justice 
agency and are also available for inspection at the 
Administrative Office of DCI listed in Rule .0101 
Paragraph (c) of this Section. These manuals are 
listed as follows: 

(1) Uniform Crime Reporting. The L'CR 
.Manual (published and provided by the 
FBI) describes how to accumulate and 
submit information collected through the 
Uniform Crime Reporting Program; and 

(2) Incident Base. The Incident Base Manual 
provides descriptions of UCR classifica- 
tion and scoring procedures, descriptions 
of Incident Base submission requirements, 
a listing of all codes used in Incident Base 
reporting, and examples of forms and their 
completion requirements. 

(b) DCI also prepares and updates the terminal 
operator's manual and hereby adopts by refer- 
ence, in accordance with the provisions of Sub- 
section (c) of G.S. 1 508- 14, the terminal 
operator's manual including any future updates, 
changes, or modifications. 

(c) DCI also maintains an on-line manual sys- 
tem. Information contained in the on-line man- 
uals can be accessed from each DCI terminal. 
The information which can be obtained is limited 
to those functions which have been authorized 
for that terminal. 

(d) A listing of the manual is available for in- 
spection by the public during normal business 
hours only at DCI's Administrative Office as 
listed in Rule .0101 Paragraph (c) of this Section. 

Statutory Authority G.S. 114-10; 1 14-10. 1. 

SECTION .0200 - REQUIREMENTS FOR 
ACCESS 

.0201 ELIGIBILITY FOR FULL OR LIMITED 
ACCESS TO THE DCI NETWORK 

(a) Eligibility for a fuU access DCI terminal or 
a computer interface with DCI is restricted to 



agencies which have obtained an NCIC ORI and 
have complied with Rule .0202 of this Section. 

(b) Eligibility for a limited access DCI terminal 
or computer interface with DCI is restricted to 
agencies which have obtained an NCIC limited 
access ORI and have complied with Rule .0202 
of this Section. 

(c) Any agency in this state desiring an ORI 
shall make a written request to the SBI Assistant 
Director for DCI. Accompanying the written 
request shall be a copy of the state or local law 
which establishes such agency and describes the 
agency's functions and authority. The SBI As- 
sistant Director for DCI shall, on the basis of his 
fmdings, obtam an FBI/NCIC ORI. If the re- 
quest is denied by the FBI, the Assistant Director 
for DCI shall provide written fmdings to the re- 
questing agency outlining the necessary elements 
to obtain an ORI. 

Statutory Authority G.S. 114-10; 1 14-10. 1. 

.0202 MANAGEMENT CONTROL 
REQUIREMENTS 

Each fuU access DCI terminal, computer inter- 
face with the DCI, and those persormel who op- 
erate the terminal must be under the direct and 
immediate management control of a criminal 
justice agency, criminal justice board or an 
NCIC/DCI approved non-criminal justice 
agency. The degree of management control shall 
be such that the agency head, board or approved 
agency has the authority to: 

(1) set pohcies and priorities concerning the use 
and operation of terminals or computers ac- 
cessing DCI; 

(2) hire, supervise, suspend or dismiss those 
personnel who will be cormected with the 
operation or use of the terminal or comput- 
ers accessing DCI; 

(3) restrict unauthorized personnel from access 
or use of equipment accessing DCI; and 

(4) assure compliance with all rules and regu- 
lations of DCI in the operation of equip- 
ment or use of all information received. 

Statutory Authority G.S. 114-10; 114-10. 1. 

.0203 NON-TERMINAL ACCESS 

(a) A non-terminal criminal justice agency may 
gain access to the DCI network through a crimi- 
nal justice agency which has direct access to the 
network. The servicing agency (agency providing 
access) shall enter into a Servicing Agreement 
with the non-terminal agency (agency receiving 
ser\ice) as described in Rule .0304 of this Sub- 
chapter. 



256 



6:6 NORTH CAROLINA REGISTER June 14, 1991 



PROPOSED RULES 



(b) Any servicing agency which fails to enforce 
penalties that are placed upon the non-terminal 
agency will be in violation of this Rule and sub- 
ject to the provisions of Subchapter 4G Rule 
.0102(e) of this Chapter. 

Statutory Authority G.S. 114-10; 1 14-10. 1. 

SECTION .0300 - STANDARDS AND 
AGREEMENTS 

.0301 STANDARDS 

(a) DCI shall be authorized to set standards 
and criteria that must be met whereby agencies 
are granted access to records maintained or 
housed through DCI. 

(b) All local, state and federal agencies who 
operate a DCI terminal or who have access to the 
on-line fdes, must abide by the standards and 
criteria established by DCI. 

(c) DCI retains the right to change or modify 
established standards, criteria or policy set forth 
in this Chapter, as circumstances warrant. 

(d) The terminal, printer, (SU/DSU), modem 
and manual shall remain under the uUimate ju- 
risdiction of DCI and shall be subject to removal 
if these procedures are violated. 

Statutory Authority G.S. 114-10; 1 14-10. 1. 

.0302 NCIC NLETS REGULATIONS 

(a) DCI is the NCIC Control Terminal Agency 
(CTA) for North Carolina. As the CTA, DCI 
is required to adhere to the NCIC User Agree- 
ment. 

(b) DCI adopts by reference, in accordance 
with the provisions of Subsection (c) of G.S. 
150B-14, the NCIC User Agreement including 
any future updates or changes. 

(c) DCI is the NLETS Control Terminal 
Agency for North Carolina. As the CTA, DCI 
is required to adhere to the NLETS User Agree- 
ment. 

(d) DCI adopts by reference, in accordance 
with the provisions of Subsection (c) of G.S. 
1 SOB- 14, the NLETS User Agreement including 
any future updates or changes. 

Statutory Authority G.S. 114-10; 1 14-10.1. 

.0303 USER AGREEMENT 

(a) Each eligible agency under Rule .0201 of 
this Subchapter requesting a DCI terminal shall 
sign a User Agreement certifying that the agency 
head has read and understands the requirements 
for security within DCI, and that the agency head 
will uphold the agreement and abide by these 
procedures. The L-ser Agreement outlines man- 



agerial control, physical security, system disci- 
pline, data collection and storage, and system 
access requirements. 

(b) A current copy of the User Agreement may 
be reviewed at 407 North Blount Street, Raleigh, 
North Carolina or in the DCI Manual. 

(c) Each eligible agency under Rule .0201 of 
this Subchapter with an interface to DCI's com- 
puter shall sign a User Agreement as stated in 
Paragraph (a) of this Rule. An interface agency 
shall require all agencies cormected through their 
computer to DCI to sign a User Agreement and 
notify those agencies of their responsibihties to 
comply with all DCI regulations. A copy of all 
such agreements shall be provided to DCI. 

(d) DCI shall be notified by the interface 
agency of any cancellation of ser\'ices to con- 
nected agencies. 

Statutory Authority G.S. 114-10; 1 14-10.1. 

.0304 USER ACCESS FEE AGREEMENT 

(a) The governing bodies of each jurisdiction 
having a DCI terminal or an interface to DCI 
shall enter into an agreement with DCI agreeing 
to assume user costs established by DCI begin- 
ning on the day of installation. This agreement 
may be modified periodically as DCI fmds it 
necessary to reflect increased costs associated 
with the utilization of the network. 

(b) DCI maintains four types of user access fee 
agreements: 

(1) municipal access fee agreement; 

(2) county access fee agreement; 

(3) state purchase order; and 

(4) federal purchase order. 

(c) Failure to pay the user access fee within the 
prescribed time may result in the termination of 
services. Termination of service shall be pre- 
ceded by a late notice allowing sufficient time to 
make payment. 

Statutory Authority G.S. 114-10; 114-10.1. 

.0305 SERVICING AGREEMENT 

(a) Any authorized agency pursuant to Rule 
.0201 of this Subchapter with direct access to 
DCI's computer which provides access to a 
non-terminal agency shall enter into a written 
Servicing Agreement with the serviced agency. 
The agreement shall include but not be limited 
to the following information: 

(1) the necessity for valid and accurate infor- 
mation being submitted for entry into 
DCI; 

(2) the necessity for documentation to sub- 
stantiate data entered into DCI; 



6:6 NORTH CAROLINA REGISTER June 14, 1991 



257 



PROPOSED RULES 



(3) the necessity of adopting timely measures 
for entering, correcting or canceling data 
in DCI; 

(4) DCI validation requirements; 

(5) the miportance of confidentiality of infor- 
mation provided by DCI; 

(6) liabilities; 

(7) the ability to confirm a hit 24 hours a day; 
and 

(8) the necessity of using the OR I of the offi- 
cial record holder in record entries and 
updates. 

(b) DCI will provide a sample Ser\icing 
Agreement to any agency entering into said 
agreement. 

(c) The Servicing Agreement must be signed 
by the ser\'icing agency and the non-terminal 
agency, must be notarized, and a copy must be 
forwarded to DCI. 

(d) DCI shall be notified of any cancellations 
or changes made in servicing agreements. 

Statuton Authority G.S. 114-10; 114-10.1. 

.0306 M.W.AGEMENT CONTROL 
.\GREEMENT 

(a) A written Management Control Agreement 
shall be entered into between the law enforce- 
ment management control agency or board and 
the communications center when management 
control will be under a criminal justice board. 
The agreement shall state that the Board is com- 
posed of law enforcement/criminal justice agency 
heads and that requirements pursuant to Rule 
.0202 of this Subchapter are in etTect. 

(b) DCI wlQ provide a sample of the Manage- 
ment Control Agreement to requesting agencies. 

Statutory Authority G.S. 114-10; 114-10.1. 

.0307 DISCLOSLRE .AGREEMENT 

(a) A written Disclosure Agreement shall be 
entered into between DCI and any individual or 
agency seeking access to DCI maintained crimi- 
nal justice information for purposes of research. 

(b) The Disclosure Agreement shall state that 
each participant and employee of ever>' program 
of research with authorized access to computer- 
ized mformation is aware of the issues of privacy, 
the limitations regarding the use of accessed in- 
formation, and that they agree to abide by DC Is 
regulations concerning these issues pursuant to 
Subchapter 4F Rule .0407 of this Chapter. 

Statutory Authority G.S. 114-10; 114-10.1. 

SECTION .0400 - OPER.VTION OK DCI 
TERMIN.\L 



.0401 DCI TERMIN.AL OPERATOR 

(a) A DCI terminal operator is a person who 
has been certified through the DCI certification 
process as stated in Rule .0402 of this Section. 

(b) An individual is eligible to attend certif- 
ication class and become a DCI terminal opera- 
tor only if employed by and under the 
management control of an agency as described in 
Rule .0202 of this Subchapter. 

(c) A background investigation shall be con- 
ducted, by the employing agency, on all employ- 
ees assigned as DCI operators. Such 
investigation shall include a state and national 
fmgerprint search for a criminal record. Any in- 
dividual who has been convicted of a felony or 
in the judgement of the agency head or the SBI 
Assistant Director for DCI, has been convicted 
of a misdemeanor involving fraud, misrepresen- 
tation, or deceit shall not be eligible to become 
certified as a DCI terminal operator or is subject 
to re\-ocation of operator certification by DCI. 

(d) Persons certified at the time of the adoption 
of these Rules will be exempt from the back- 
ground investigation and fmgerprint search. 

Statutory Authority G.S. 114-10; 114-10.1. 

.0402 CERTIFICATION OF TER.MIN.AL 
OPERATORS 

(a) Authorized agency personnel, who are as- 
signed the duty of operating the DCI terminal, 
shall be certified by DCI within 120 days of em- 
ployment with certification renewed at least e\'ery 
24 months. 

(b) DCI issues three types of certification: 

(1) "FuU-certification" certifies a person with 
the ability and knowledge to use those 
programs which are developed and ad- 
ministered by DCI for local law enforce- 
ment and criminal justice agencies. To 
obtain an initial fuU-certification, author- 
ized personnel must attend not less than 
28 hours of instruction concerning the 
proper use and control of information 
obtained from a DCI terminal; 

(2) "Re-ccrtitication" renews a fuU certif- 
ication at least every 24 months after the 
initial certification is issued. Re- 
certification may be obtained by attending 
the two day re-certification class if initial 
certification has not e.xpired or if an indi- 
vidual has obtained a 30 day extension. 
If the initial certification has expired, 
he/she must attend the entire initial cer- 
tification classroom instruction. An indi- 
vidual may retain their original 
certification date if re-certification class is 



25S 



6:6 NORTH CAROLINA REGISTER June 14, 1 991 



PROPOSED RULES 



attended up to 90 days prior to the expi- 
ration date; and 
(3) "In-service certification" certifies and/or 
re-certifies a person through an in-service 
training program provided by their de- 
partment. In order for an agency to ob- 
tain an "In-service Certification 
Program", the agency must submit a 
written proposal to DCI outlining the 
certification program to be provided to 
their personnel. DCI personnel and the 
Advisory Policy Board wUl review the 
proposal and provide a written response 
of approval or denial. If the program is 
approved, a copy of the lesson plans, a list 
of personnel certified through such pro- 
gram, transaction codes to be authorized 
by terminal, and other information relat- 
ing to the program shall be provided to 
DCI. The instructor for the agency must 
complete the law enforcement instructor 
certification course, 
(c) Enrollment wiU be necessary in order for 
DCI instructors to admit a student in a DCI 
certification or re-certification class. Enrollment 
procedures shall be as foUows: 

(1) A search of the certification class fdes shall 
be performed to determine whether a class 
has any vacancies; 

(2) If there is a vacancy, an enrollment form 
signed by the department head, or when 
applicable, by a communications supervi- 
sor, which lists the individuals to be en- 
roUed in the specific training class shall be 
submitted to DCI no later than five 
working days before the class is scheduled 
to begin. If for some reason all personnel 
cannot be accommodated, DCI will 
promptly contact the department head or 
supervisor with an explanation of why all 
personnel cannot be accommodated in the 
class requested; 

(3) A search of the certification class files shall 
be performed by the agency enrolling 
personnel to verify that the requested 
personnel have been enrolled in the class 
requested; and 

(4) Late enrollment may be made by the de- 
partment head or when applicable, by a 
communications supervisor, by either 
sending a switch message to terminal PIH 
or by faxing a copy of a properly com- 
pleted late enrollment form to DCI via 
phone number (919) 733-8378. Late en- 
rollment by switch message must include 
the name and social security number of 
personnel to be enroUed in the class. 
Employees should not be sent to class 



until a confirmation of receipt and space 
availability has been received from DCI. 
The employee must bring a completed 
enrollment form signed by the agency 
head or when applicable, by the commu- 
nications supervisor, to class if the enroll- 
ment is by switch message. 

(d) New personnel hired or personnel newly 
assigned the duties of a terminal operator shall 
receive an indoctrination and hands-on training 
on the basic functions and terminology of the 
DCI system by their own agency prior to at- 
tending certification class. Such personnel may 
operate a terminal accessing DCI while obtaining 
indoctrination if such personnel are directly 
supervised by a certified operator. 

(e) Following the instruction on fuU certif- 
ication, in-service certification or re-certification 
classes, a test will be administered and a mini- 
mum grade of 80 percent must be attained in or- 
der for a person to become operator certified. 

(f) DCI win notify the employee's supervisor 
of the grade attained. If 80 percent or more has 
been attained, the employee is certified upon re- 
ceipt of notice whether verbal or written. 

(g) Any agency which allows an individual to 
operate a terminal or interface terminal accessing 
DCI who is not certified or who is not within the 
120 day training period and directly supervised 
by a certified operator will be in violation of this 
Rule and subject to the provisions of Subchapter 
4G Rule .0102(b) of this Chapter. 

(h) Any agency p>ersonnel using a certified op- 
erator's identifier other than their own to gain 
access to DCI will be in violation of this Rule 
and subject to the provisions of Subchapter 4G 
Rule .0102(c) of this Chapter. 

Statutory Authority G.S. 114-10; 1 14-10.1. 

.0403 SLSPENSION AND REVOCATION OF 
OPERATOR CERTIFICATION 

(a) DCI may suspend or revoke an operator's 
certification for willfully or repeatedly violating 
the rules of this Chapter in accordance with 
Subchapter 4G. 

(b) DCI may revoke an operator's certification 
based upon a request from the operator's agency 
head. Sufficient evidence showing cause for re- 
vocation shall be documented by the employer 
and submitted to the Assistant Director for DCI. 

(c) If DCI revokes or suspends an operator's 
certification, written notice of the revocation or 
suspension wiU be sent by certified mail to the 
operator and to his agency head. An operator 
whose certification has been revoked or sus- 
pended may request an informal hearing before 
the Advisory Policy Board. A request for a 



6:6 NORTH CAROLINA REGISTER June 14, 1991 



259 



PROPOSED RULES 



hearing must be submitted to the SBI Assistant 
Director for DCI within 30 days from the date 
of notification of revocation or suspension. An 
operator requesting an informal hearing may 
have his her certification reinstated until the re- 
sults of the informal hearing are known. DCI 
shall notify the operator and his agency head of 
the results of the informal hearing and inform the 
parties of their ri^ht of appeal under G.S. 
150B-23. 

(d) Any operator who has had his her certif- 
ication revoked and not reinstated by the Advi- 
sory Policy Board, or by the Office of 
Administrative Hearings shall not be eligible to 
obtain DCI certification for a period of one year 
from revocation. The individual must meet the 
requirements of Rule .0402 of this Section prior 
to obtaining certification. 

(e) DCI maintained operator records, compiled 
as a result of audits including probationary, sus- 
pension, or revocation status, wUl be made 
available to employing law enforcement criminal 
justice agencies upon request. 

Statutory Authority G.S. 114-10; 114-10.1. 

SL BCH AFTER 4F - SECURITY .\ND PRI\ ACV 

SECTION .0100 - SECURITY .\1 LOCAL SITES 

.0101 SECURITY OF DCI EQUIPMENT 

(a) Agency heads who have management con- 
trol of the DCI terminal shall institute controls 
for maintaining the sensiti\ ity and confidentiality 
of all information provided by or through DCI. 
These controls will include, but are not limited 
to, the following: 

(1) the DCI terminal and printer shall be lo- 
cated in a secure area accessible only to 
authorized personnel; 

(2) the DCI terminal operator's manual and 
changes thereto shall be located in a se- 
cure area accessible only by authorized 
personnel; and 

(3) the DCI terminal equipment must be 
safeguarded from damage by excessive 
dirt, employee misuse, fire, floods and 
power failure. 

If any damage occurs, it will be reported to the 
DCI computer center by telephone, or by switch 
message to the DCI central site. Users will be 
Uable for payment for repairs resuhing from 
neghgence, abuse or misuse. 

(b) Failure to maintain a secure site will be a 
violation of this Rule and subject to the pro- 
\isions of Subchapter 4G Rule .0102(a) of this 
Chapter. 



Statutory Authority G.S. 114-10; 114-10.1. 

.0102 OFFICIAL USE OF DCI INFORMATION 

(a) The DCI Communications Network is for 
appropriate criminal justice and law enforcement 
purposes only. .AH traffic generated over the 
system shall be made in the performance of the 
employee's or agency's official duties as they re- 
late to the administration of criminal justice. 

(b) .An inappropriate message is one which 
contains information that is unnecessary, e.xces- 
sive or abusive in nature. Some examples of in- 
appropriate messages are requests for checks on 
wanted persons when such information can be 
found in the wanted person file, messages which 
give inadequate descriptions thereby preventing 
appropriate action from being taken, messages 
which provide lengthy lists of property stolen 
which should be entered into the DCI NCIC hot 
files, or any messages which recruit personnel. 

(c) The transmission of inappropriate messages 
over the DCI network is a practice that should 
not be engaged in. 

(d) Non-criminal justice information is any 
message of a personal nature or a subject matter 
totally unrelated to the administration of criminal 
justice. 

(e) The transmission of non-criminal justice 
information o\er the DCI network is a violation 
of this Rule and subject to the provisions of 
Subchapter 4G Rule .0102(d) of this Chapter. 

Statutory Authority G.S. 114-10; 114-10.1. 

SECTION .0200 - DCI/NCIC HOT FILES 

.0201 DOCUMENT.ATION 

(a) Law enforcement and criminal justice 
agencies have the capability to enter 
stolen, recovered property and wanted, missing 
persons into the DCI NCIC hot files. .Any re- 
cord entered into the hot files must be docu- 
mented. The documentation required is: 

(1) a theft report of items of stolen property; 

(2) an active warrant for the entry of wanted 
persons; 

(3) a missing person report and, if a juvenile, 
a written statement from a parent, spouse, 
family member, or legal guardian verifying 
the date of birth and confirming that a 
person is missing; or 

(4) a medical e.xammer's report for an uni- 
dentified dead person entry'. 

(b) Requirements further defmed in the on-line 
manual must stiU be followed. 

Statutory Authority G.S. 114-10; 114-/0.1. 



260 



6:6 NORTH CAROLINA REGISTER June 14, 1991 



PROPOSED RULES 



.0202 VALFDATIONS 

(a) DCI/NCIC requires that law enforcement 
and criminal justice agencies validate all record 
entries, with the exception of articles, made into 
the hot files. This process ensures that each hot 
file record is complete, accurate and up-to-date. 

(b) Validation is accomphshed by reviewing the 
original entry and current supporting documents. 
In addition to this review, the stolen vehicle, 
stolen boat, wanted person and missing person 
files require consultation with any appropriate 
complaintant, victim, prosecutor, court, motor 
vehicle registry files or other appropriate source 
or individual pursuant to the procedure in the 
DCI on-line manual. 

(c) Any records containing inaccurate data shall 
be modified and records which are no longer 
current or, can not be substantiated by a source 
document, shall be removed from the hot fdes. 

(d) /Vny agency which does not properly vali- 
date their records and notify DCI of the com- 
pletion of their validation, pursuant to the 
procedure in the DCI on-line manual, will have 
their records cancelled for that month. The 
agency head wiU be notified by mail of the can- 
cellation. An agency may re-enter the cancelled 
records once the records have been validated. 

Statutory Authority G.S. 114-10; 1 14-10. 1. 

.0203 HIT CONFIRMATION 

(a) Any agency entering record information 
into the DCI/NCIC hot files, or which has a 
servicing agency enter record information for 
their agency, is required to provide hit confirma- 
tion 24 hours a day. Hit confirmation of 
DCI/NCIC records means that an agency re- 
ceiving a positive DCI/NCIC response from an 
inquiry must communicate with the official re- 
cord holder to confirm the following before tak- 
ing a person or property into custody: 

(1) ensure that the person or property in- 
quired upon is identical to the person or 
property identified in the record; 

(2) ensure that the warrant, missing person 
report, or theft report is still outstanding; 
and 

(3) obtain a decision regarding the extradition 
of a wanted person, information regarding 
the return of the missing person to the 
appropriate authorities, or information 
regarding the return of stolen property to 
its rightful owner. 

(b) The official record holder must respond 
within ten minutes of receiving a hit confirmation 
request with the desired information or a notice 
of the specific amount of time necessary to con- 
firm or reject the record. 



(c) DCI may cancel an agency's record from 
the DCI/NCIC hot fdes for failure to respond to 
a hit confirmation request within ten minutes. 

Statutory Authority G.S. 114-10; 114-10.1. 

SECTION .0300 - SUBMISSION OF DATA FOR 
CRIMINAL HISTORY RECORDS 

.0301 ARREST FINGERPRINT CARD 

(a) Agencies must submit an SBI and an FBI 
fmgerprint card on every individual charged with 
the commission of a felony. The fmgerprint 
cards must contain the following information on 
the arrestee in order to be processed by the SBI 
and FBI: 

(1) OR I number and address of arresting 
agency; 

(2) complete name; 

(3) date of birth; 

(4) race; 

(5) sex; 

(6) date of arrest; 

(7) criminal charges; and 

(8) a set of roUed-inked fmgerprint im- 
pressions, including palm prints on the 
SBI fmgerprint card. 

Any fmgerprint cards received by DCI which do 
not meet these requirements will be returned to 
the submitting agency to be corrected and resub- 
mitted. 

(b) The arrest information contained on the 
arrest fmgerprint card is added to the NC CCH 
files. After processing through the SBI fdes, the 
FBI criminal fmgerprint card is forwarded to the 
FBI for processing. 

(c) Criminal fmgerprint cards may be submitted 
in the following ways: 

(1) first class mad addressed to: 

North Carolina State Bureau of Investi- 
gation 

Division of Criminal Information 
407 North Blount Street 
Raleigh, North Carohna 27601-1009 
Attention: Identification Section; 

(2) deUver in person: 

North Carolina State Bureau of Investi- 
gation 

Identification Section 
Governor Morehead School 
Building 16A 
3320 Old Gamer Road 
Raleigh, North Carohna 27626-0500; and 

(3) inter agency state courier service mail 
pickup located at each county seat ad- 
dressed to the address in Subparagraph 
(c)(1) of this Rule. 



6:6 NORTH CAROLINA REGISTER June 14, 1991 



261 



PROPOSED RULES 



(d) SBl arrest fingerprint cards and CHRI shall 
be maintained actively in the SBI files on an in- 
dividual until: 

(1) the individual attains the age of 80 years; 

(2) submission of post-mortem fmgerprints; 
or 

(3) court ordered expungement. 

Statutory Authority G.S. lSA-502: ISA- 1 383. 

.0302 FINAL DISPOSITION INFORMATION 

(a) Final disposition information shall be sub- 
mitted to the SBI by the Clerk of Court, or the 
Administrative Office of the Courts. The agency 
which submitted the arrest fmgerprint card must 
include the following information on the fmal 
disposition report before it can be processed by 
the Clerk of Court: 

(1) ORI number and address of arresting 
agency; 

(2) complete name; 

(3) date of birth; 

(4) race; 

(5) sex; 

(6) date of arrest; 

(7) all offenses charged against the defendant; 

(8) officer's name; 

(9) officer's title; and 
(10) date form filled out. 

Any fmal disposition information received by 
DCI which does not meet these requirements will 
be returned to the appropriate agency to be cor- 
rected and resubmitted. 

(b) The final disposition information is added 
to the CCH files. 

(c) Final disposition information may be sub- 
mitted pursuant to the procedure listed in Rule 
.0301 Paragraph (c) of this Section. 

Statutory Authority G.S. ISA- 1 38 1; ISA- 1 382; 
ISA- 1 383. 

.0.303 PRISON FINGERPRINT CARD 

(a) Incarceration information shall be submit- 
ted to the SBI by the NC Department of Cor- 
rection (DOC) on all subjects admitted to pnson. 
Two fmgerprint cards must be submitted and 
contain the following information in order to be 
processed by the SBI and FBI: 

(1) ORI number; 

(2) complete name; 

(3) date of birth; 

(4) race; 

(5) sex; 

(6) date of admission; 

(7) charges convicted of; 

(8) DOC number; 

(9) sentence information; and 



(10) a set of rolled-inked fingerprint im- 
pressions, including palm prints on the 
SBI fmgerprint cards. 
Any incarceration information received by DCI 
which does not meet these requirements will be 
returned to DOC to be corrected and resubmit- 
ted. 

(b) The incarceration information contained 
on the prison fmgerprint card is added to the NC 
ecu fdes. /Vfter processing through the SBI 
files, the FBI criminal card is forwarded to the 
FBI for processing. 

(c) Incarceration information may be submit- 
ted pursuant to the procedure listed in Rule .0301 
Paragraph (c) of this Section. 

Statutory Authority G.S. ISA-502; ISA-1383. ' 

SECTION .0400 - COMPUTERIZED CRIMINAL 
HISTORY ACCESS AND USE REQUIREMENTS 

.0401 DISSEMINATION OF CCH RECORDS 

(a) E.xcept as provided by Rules .0402 .0404, 
.0406, of this Section criminal histor>' record in- 
formation obtamed from or through DCI, 
NCIC, or NLETS shall not be disseminated to 
anyone outside of those agencies eligible under 
Subchapter 4E Rule .020 ^a) of thTs Chapter. 
.\ny agency assigned an ORI number with a 
suffix of "P" shall not obtain criminal history 
record information. Any agency requesting crim- 
inal history record information which has not 
received an ORI pursuant to Subchapter 4E Rule 
.0201(a) of this Chapter should be denied access 
and referred to the SBI Assistant Director for 
DCI. 

(b) Criminal history record information is 
available to eligible agency personnel only on a 
"need-to-know" or "right-to-know" basis as de- 
fmed in Subchapter 4E Rule .0107 of this Chap- 
ter. 

(c) The use or dissemination of computerized 
criminal history for unauthorized purposes will 
be in violation of this Rule and subject to the 
provisions of Subchapter 4G Rule .0102(k) and 
(1) of this Chapter. 

(d) Each criminal justice agency obtaining 
criminal history record information through DCI 
shall maintain a log of dissemination on all posi- 
tive responses (indicating a criminal record) for a 
period of not less than one year from the date the 
record was obtained. The documentation log 
must contain the following information: 

(1) date of inquiry; 

(2) name or initials of terminal operator; 

(3) name or record subject; 

(4) state identification number (SID) or FBI 
number of the record subject; 



262 



6:6 NORTH CAROLINA REGISTER June 14, 1991 



PROPOSED RULES 



(5) message key used to obtain information; 

(6) purpose (actual need i.e.: criminal investi- 
gation, taxi cab permit, etc.); 

(7) name of person requesting information; 
and 

(8) name of secondary dissemination, if any. 

(e) Dissemination logs shall be available for 
audit or inspection by the SB I Assistant Director 
for DC! or his designee at such time as they may 
require, as provided in Section .0800, Rule .0801 
of this Subchapter. 

(f) Direct or indirect access agencies with a DCI 
terminal responding to an out-of-state request for 
criminal history record information through 
NLETS shall only respond with criminal history 
record information received within their jurisdic- 
tion and maintained in their files. Out-of-state 
agencies requesting a statewide criminal record 
check should be directed to use the state auto- 
mated file. 

(g) Agencies that fail (failure is defmed as more 
than 10 percent deficient) to record all required 
data on the log of dissemination as required in 
Paragraph (d) of this Rule wiU be in violation of 
Subchapter 4G Rule .0102(m) of this Chapter. 

(h) Agencies that fail (failure is defmed as more 
than 10 percent deficient) to maintain a log of 
dissemination of "positive" criminal history re- 
cord information obtained through DCI for a 
period of one year as required in Paragraph (d) 
of this Rule will be in violation of this Rule and 
subject to the provisions of Subchapter 4G Rule 
.0102(n) of this Chapter. 

Statutory Authority G.S. 114-10; 1 14-10. 1. 

.0402 ACCESSING OF CCH RECORDS 

(a) Any accessing of or inquiry into the CCH 
records must be made with the proper message 
key only and must be for the intended trans- 
action or purpose for which the message key is 
designed. 

(b) Any accessing of or inquiry into the 111 
using an improper message key resulting in a re- 
cord being routed to a terminal and displayed on 
the screen shall be a violation of this Rule and 
subject to the provisions of Subchapter 4G Rule 
.0102(i) of this Chapter. 

(c) Any dissemination by a certified operator 
for an unauthorized purpose or to an unauthor- 
ized requestor shall be a violation of this Rule 
and subject to the provisions of Subchapter 4G 
Rule .0102(K) of this Chapter. 

Statutory Authority G.S. 114-10; 1 14-10.1. 

.0403 LSE OF CCH FOR CRIMINAL 
JUSTICE EMPLOYMENT 



(a) DCI processes criminal justice applicant 
fmgerprint cards required pursuant to statute. 

(b) Agencies must submit two applicant 
fmgerprint cards on each individual containing 
the following information in order to be proc- 
essed by the SBI and FBI: 

(1) complete name; 

(2) date of birth; 

(3) race; 

(4) sex; 

(5) position applied for; 

(6) hiring agency; and 

(7) a set of roUed-inked fmgerprint im- 
pressions. 

Any fmgerprint cards received by DCI which do 
not meet these requirements will be returned to 
the submitting agency to be corrected and resub- 
mitted. 

(c) All criminal justice applicant fmgerprint 
cards and the resulting record response are re- 
turned to the appropriate agencies and are not 
maintained by DCI. 

Statutory Authority G.S. 114-16; 114-19. 

.0404 INDIVIDUAL'S RIGHT TO REVIEW 
HIS/HER OVVN CRIMINAL HISTORY 
RECORD 

(a) An individual may obtain a copy of his or 
her own criminal history record by submitting a 
written request to the North Carolina State Bu- 
reau of Investigation, Division of Criminal In- 
formation, Identification Section, 407 North 
Blount Street, Raleigh, North Carolina 
27601-1009. The written request must be ac- 
companied by a certified check or money order 
in the appropriate amount payable to the North 
Carolina Department of Justice, and must con- 
tain proof of identity to include: 

(1) complete name and address; 

(2) race; 

(3) sex; 

(4) date of birth; 

(5) social security number; and 

(6) a set of roUed-inked fmgerprint im- 
pressions. 

This procedure guarantees positive identification 
and insures that the individual receives a copy of 
his or her own record as currently maintained in 
the SBI Identification file including CCH and 
APIS. 

(b) The accuracy and completeness of an indi- 
vidual's record may be challenged by submitting 
the written exceptions form available from the 
DCI. 

(c) Upon receipt of the written exceptions 
form, the Identification Section Supervisor shall 
initiate an internal record audit of the challenger's 



6:6 NORTH CAROLINA REGISTER June 14, 1991 



263 



PROPOSED RULES 



record to determine its accuracy. If any inaccu- 
racies or omissions are disco\'ered, the Identifi- 
cation Section will make appropriate additions, 
deletions or alterations to the record. Notice of 
any changes made will be gi\'en to the challenger, 
and to any agency to which the inaccurate or in- 
complete information has been disseminated. 
The challenger shall be informed in writing of the 
results of the audit. 

(d) If the audit fails to disclose any inaccura- 
cies, or if the challenger wishes to contest the re- 
sults of the audit, he is entitled to an 
administrative hearing pursuant to G.S. 150B-23. 

Statutory Authority G.S. 114-10; 1 14-10. 1. 

.0405 LSE OF CCH/LICENSING/ 
NON-CRIMIN.\L JLSTICE 
EMPLOYMENT PLRPOSES 

(a) Criminal justice agencies authorized under 
Subchapter 4E Rule .0201 of this Chapter which • 
issue licenses or approves non-criminal justice 
employment and want to use computerized 
criminal histor." information maintained by DC I 
for licensing, permit, and non-criminal justice 
employment purposes shall submit to the SBI 
Assistant Director for DCI a written request list- 
ing the types of licenses, permits, and employ- 
ment for which they desire to use computerized 
criminal histor}' mformation. A copy of the local 
ordinance(s) and or a reference to the North 
Carolina General Statute{s) giving authority to 
issue a particular permit or license must be in- 
cluded in the written request. 

(1) Authorization to use computerized crimi- 
nal histor.' information for licensing, per- 
mit, or employment purposes may be 
given only after the SBI Assistant Director 
for DCI and the North Carolina Attorney 
General's Office have evaluated and 
granted authorization based upon the au- 
thority of the North Carolina General 
Statutes and or local ordinance pertaining 
to the issuance of that particular license 
or permit for employment: 

(2) Upon authorization, a written notice will 
be submitted to the requesting agency au- 
thorizing that agency to use computerized 
criminal history information maintained 
by DCI for specified licensing permit or 
employment purposes; 

(3) After notice of authorization has been 
given, the agency's terminal, if applicable , 
wiU receive the capability to use the pur- 
pose code ■'£" in the purpose field of the 
computerized criminal histor\' inquiries 
for employment licensing. Once an 
agency has received this capability, it shall 



be required to use the purpose code "E", 
the proper two character code, and an 
abbreviation of the ultimate recipient of 
the records name. A log of aU primary 
and any secondary dissemination must 
also be kept for one year on all positive 
responses received from this type of in- 
quiry. 

(b) Criminal justice agencies may also gain ac- 
cess by submission of non-criminal justice appli- 
cant fmgerprint cards. Approval must be 
obtained pursuant to the procedure in Paragraph 
(a) of this Rule and a Fee for Service Agreement 
must be signed prior to the release of criminal 
history information. Two applicant fmgerprint 
cards must be submitted on each individual ac- 
companied by a check or money order if the 
agency has not signed the DCI Billing Agree- 
ment. The fmgerprint cards must contain the 
following information on the applicant in order 
to be processed by the SBI and FBI: complete 
name, date of birth, race, sex, reason 
fmgerprinted to include the N.C.G.S., position 
applied for, the Ucensing/employing agency, and 
a set of roUed-inked fmgerprint impressions. The 
fmgerprint cards shall be returned to the agency 
denoting a prior record or with a no record re- 
sponse. 

(c) Requests from non-criminal justice agencies 
or individuals to use cnmmal history information 
maintained by DCI for licensing and employ- 
ment purposes shall be treated as a fee for service 
request pursuant to G.S. 114-19.1. AU such re- 
quests shall be submitted in writing to the SBI 
Assistant Director for DCI who shall recommend 
approval or disapproval as appropriate. The 
Assistant Director may consult with the Advisory 
Policy Board if he deems it necessary prior to 
making a tlnal recommendation to the Depart- 
ment of Justice. 

(1) Upon being approved, the requesting 
agency shall submit its requests to the 
Division of Criminal Information, atten- 
tion: Identification Section, 407 North 
Blount Street, Raleigh, North Carolina 
27601. Each request shall include suffi- 
cient documentation to establish and ver- 
ify identity such as complete name, race, 
sex, date of birth, and social security 
number. Each request shall include a 
reasonable fee established for such re- 
quests in the form of a certified cashier's 
check or money order; and 

(2) Criminal histors' information accessible by 
authorization of this Section shall be 
North Carolina criminal history informa- 
tion only. 



264 



6:6 NORTH CAROLINA REGISTER June 14, 1991 



PROPOSED RULES 



Statutory Authority G.S. 114-10; 114-10. 1; 
114-19. 1. 

.0406 RESTRICTIVE USE/CCH/LICENSING/ 
NON-CRIMINAL JUSTICE EMP 
PLRPOSES 

(a) Use of computerized criminal history in- 
formation maintained by the DC I for licensing 
permits or non-criminal justice employment 
purposes shall only be authorized for those 
criminal justice and non-criminal justice agencies 
who have complied with Rule .0405 of this Sec- 
tion. 

(b) The following requirements and restrictions 
shall be applicable to all agencies who have re- 
ceived approval to use computerized criminal 
history information for licensing, permits, or 
non-criminal justice employment purposes. 
Each such agency shall be responsible for their 
fuU and prompt implementation: 

(1) in no case shall computerized criminal 
history information obtained be used or 
disseminated for any other purpose; 

(2) in no case shall computerized criminal 
history information obtained be released 
to or reviewed by anyone other than the 
agencies authorized by the SBI Assistant 
Director for DCI; 

(3) the only data in the computerized criminal 
history files which can be used in an 
agency's determination of issuing or de- 
nying a license, permit or employment are 
those crimes stipulated in the referenced 
ordinance or statutory authority as 
grounds for disqualification. AU criminal 
history arrest information held by DCI 
wiU be released regardless of disposition 
status. Each agency shall be responsible 
for reviewing each statutory authority and 
knowing what data can and cannot be 
used for grounds in denying or issuing a 
particular Ucense or permit for employ- 
ment; 

(4) Prior to denial of a license, permit, or 
employment due to data contained in a 
computerized criminal history record, a 
fingerprint card of the applicant shall be 
submitted to the SBI, DCI Identification 
Section for verification that the record 
belongs to the applicant; 

(5) If the information in the record is used to 
disqualify an apphcant, the official making 
the determination of suitability for licens- 
ing or employment shall provide the ap- 
plicant the opportunity to complete, or 
challenge the accuracy of the information 
contained in the record. The applicant 
must be afforded a reasonable time to 



correct, complete or to decline to correct 
or complete the information. An appli- 
cant should not be presumed to be guilty 
of any charge/arrest for which there is no 
fmal disposition stated on the record or 
otherwise determined. Applicants wishing 
to correct, complete or otherwise chal- 
lenge a record must avail themselves of 
the procedure set forth in Rule .0404 
Paragraph (c) of this Section. Improper 
use of CCH data in denial or revocation 
of a license or p)ermit is a violation of this 
Rule and subject to the provisions of 
Subchapter 4G Rule .0102(j) of this 
Chapter, 
(c) A "no-hit" on a computerized criminal 
history inquiry does not necessarily mean that 
the individual does not have a record. If the re- 
questing agency desires a more complete check 
on an applicant, a fingerprint card of the apph- 
cant should be submitted to DCI. 

Statutory Authority G.S. 114-10; 114-10.1; 
114-19. 1. 

.0407 RESEARCH USE/ACCESS/ 

COMPUTERIZED CRIMINAL HISTORY 
RECORDS 

(a) Researchers who wish to use criminal jus- 
tice information maintained by DCI shall first 
submit to the SBI Assistant Director for DCI a 
completed research design that guarantees ade- 
quate protection of security and privacy. Au- 
thorization to use computerized criminal history 
records may be given after the SBI Assistant Di- 
rector for DCI has approved the research design. 

(b) Prior to making a decision whether or not 
to authorize a particular researcher access to 
CCH, the SBI Assistant Director for DCI may 
consult with the DCI Advisory Policy Board. 

(c) In making a determination, the Assistant 
Director and the Advisory PoUcy Board must 
insure that an individual's right to privacy will 
not be violated by the research program, that the 
program is calculated to prevent injury or em- 
barrassment to any individual, that the results 
outweigh any disadvantages that are created for 
the North Carolina criminal justice system if the 
research information is provided, that the crimi- 
nal justice community benefit from the research 
and use, and that the requestor be responsible for 
cost. 

(d) For purposes of this Section, a researcher 
shall be defmed as a non-criminal justice/private 
agency or a criminal justice agency wishing to 
access criminal history data for a statistical pur- 
pose. 



6:6 NORTH CAROLINA REGISTER June 14, 1991 



265 



PROPOSED RULES 



Statutory Authority G.S. 
114-19. 1. 



114-10; 114-10. 1: 



.0408 LIMITATION REQUIREMENTS 

Research designs must preserve the anonymity 
of all subjects. The following requirements shall 
be applicable to all such programs of research 
and each criminal justice agency and/or re- 
searcher shall be responsible for their full and 
prompt implementation; 

(1) In no case shall computerized criminal his- 
tory records furnished for purposes of any 
program of research be used to the detriment 
of the person(s) to whom such information 
relates. 

(2) In no case may computerized criminal his- 
tory records furnished for purposes of any 
program of research be used for any other 
purpose; nor may such information be used 
for any program of research other than that 
authorized by the SBI Assistant Director for 
DCI. 

(3) Each researcher or anyone having access to 
the computerized criminal history shall, 
prior to having such access, sign a Disclo- 
sure Agreement with the SBI Assistant Di- 
rector for DCI incorporating the 
requirements of Subchapter 4E Rule .0307 
of this Chapter. 

(4) In every case the authorization for access 
to computerized criminal history records 
shaU assure that the criminal justice agency 
and the SBI Assistant Director for DCI has 
full and complete rights to monitor the pro- 
gram of research to assure compliance with 
this Regulation. Such monitoring rights 
shall include the right of DCI staff and the 
DCI Advisory Policy Board to audit and 
review such monitoring activities and also to 
pursue their own monitoring activities. 

(5) Each program of research shaU preserve the 
right of DCI and the criminal justice agency 
involved to examine and verify the data 
generated as a result of the program, and, if 
a material error or omission is found to have 
occurred, to order that the data not be re- 
leased for any purpose unless corrected to 
the satisfaction of the agency and DCI. 



Statutory Authority G.S. 
114-19.]. 



114-10; 114-10.1; 



SECTION .0500 - REMOVAL OF CRIMINAL 
HISTORY RECORD INFORMATION 

.0501 EXPUNGEMENTS 

(a) Criminal history record information may 
be expunged from NC CCH files when the 



petitioner follows the guidelines outlined in the 
NC General Statutes. 

(b) Upon the receipt of a valid court ordered 
expungement, the Identification Section of DCI 
will e.xpunge the appropriate CHRI as directed 
by the court order. The court order will be for- 
warded to the FBI for processing and all agencies 
which have inquired on the record within the 
past 90 days will be advised of the court order. 

(c) The cost of the expungement shall be taxed 
against the petitioner with all funds received ap- 
plied toward the cost of processing 
expungements. 

Statutory Authority G.S. J5A-J45; I5A-146; 
90-96: 90-113.14. 

.0502 PURGES 

(a) DCI will purge criminal history record in- 
formation on deceased subjects upon the receipt 
of two sets of post mortem fmgerprints. De- 
ceased records are retained at DCI for one year 
and then are transferred to the State Records 
Center and retained there for five years. 

(b) DCI will also purge criminal history record 
information when an individual attains the age 
of 80 years. Once purged, these records are re- 
tained for one year and then transferred to the 
State Records Center and retained there for five 
years. 

Statutory Authority G.S. 114-10; 114-10. 1. 

SECTION .0600 - AUTOMATED FINGERPRINT 
IDENTIFICATION SYSTEM 

.0601 AUTOM.\TED FINGERPRINT 
IDENTIFICATION SYSTE.M 

(a) Agencies which meet the requirements of 
Subchapter 4E Rule .0201(a) of this Chapter 
have the capability to access the SBI's Auto- 
mated Fingerprint Identification System for 
criminal justice purposes. 

(b) Direct access may be obtained by submit- 
ting a letter of request to the SBI Assistant Di- 
rector for DCI. 

(c) The following data is available and may be 
used to make comparisons and/or obtain CCH 
data: 

(1) fmgerprint classification; 

(2) fmgerprint minutiae; 

(3) fmgerprint images; and 

(4) state identification number. 

(d) When the state identification number is 
used to obtain CCH data, dissemination require- 
ments outlined in Rule .0401 Paragraphs (c) and 
(d) of this Subchapter must be followed. 

Statutory Authority G.S. 1 5 A- 50 2; 114-16. 



266 



6:6 NORTH CAROLINA REGISTER June 14, 1991 



PROPOSED RULES 



SECTION .0700 - DRIVER FIISTORY 

.0701 DISSEMINATION OF DRIVER 
HISTORY INFORMATION 

(a) Driver history information obtained from 
or through DC I shall not be disseminated to 
anyone outside those agencies eligible under 
Subchapter 4E Rule .0201(a) of this Chapter 
unless obtained for the following purposes: 

(1) in the decision of issuing permits or li- 
censes if statutory authority stipulates the 
non-issuance or denial of a permit or h- 
cense to an individual who is a habitual 
violator of traffic laws or who has com- 
mitted certain traffic offenses and those 
hcensing purposes have been authorized 
by DCI and the Attorney General's Of- 
fice; 

(2) by governmental agencies to evaluate per- 
spective or current employees for posi- 
tions involving the operation of public 
owned vehicles; or 

(3) by a defendant's attorney of record in ac- 
cordance with G.S. 15A-141. 

(b) The dissemination of driver history infor- 
mation to an unauthorized requestor by a certi- 
fied operator will be a violation of this Rule and 
subject to the provisions of Subchapter 4G Rule 
.0102(0 of this Chapter. 

(c) Each direct access agency disseminating 
driver history information to a non-criminal jus- 
tice agency for any of the purposes listed in Par- 
agraph (a) of this Rule shall maintain a log of 
dissemination for one year containing the fol- 
lowing information: 

(1) date of inquiry for obtaining driver's his- 
tory; 

(2) name of terminal operator; 

(3) name of record subject; 

(4) driver's license number; 

(5) name of individual and agency requesting 
or receiving Lnformation;-and 

(6) purpose of inquiry. 

(d) Driver histor>' records obtained for any 
purpose hsted in Paragraph (a) of this Rule shall 
be used for only that official internal purpose and 
shall not be redisseminated or released for any 
other purpose. 

(e) Driver history information obtained from 
or through DCI shall not be released to the in- 
dividual of the record. If an individual wishes to 
review or challenge their own driving record, they 
should contact the Division of Motor Vehicles in 
Raleigh, North Carolina. 

(!) Any unauthorized use of driver's history by 
authorized agency personnel other than a certi- 
fied operator is a violation of this Rule and sub- 



ject to the provisions of Subchapter 4G Rule 
.0102(g) of this Chapter, 
(g) Agencies failing to maintain (failure is de- 
fmed as more than 10 percent deficient) a log of 
dissemination on driver's histories obtained 
through DCI for the purposes and time limits 
outlined herein shall be in violation of this Rule 
and subject to the provisions of Subchapter 4G 
Rule .0102(h) of this Chapter. 

Statutory Authority G.S. 114-10; 1 14-10. 1. 

SECTION .0800 - ALDITS 

.0801 ALDITS 

(a) DCI must biannually audit criminal justice 
information entered, modified, cancelled, cleared 
and disseminated by DCI terminal users. Agen- 
cies subject to audit include all agencies which 
have direct or indirect access to information ob- 
tained through DCI. 

(b) DCI shall send designated representative(s) 
to selected law enforcement and criminal justice 
agency sites to audit: 

(1) criminal history dissemination logs; 

(2) security safeguards and procedures 
adopted for the filing, dissemination, or 
destruction of criminal history records; 

(3) secure location and access of DCI termi- 
nals; 

(4) documentation establishing the accuracy 
and validity of records entered into 
DCI/NCIC wanted, missing person, and 
property files; and 

(5) fingerprint submissions of arrestees. 

(c) The audits will be conducted to ensure that 
the agencies are complying with DCI's regu- 
lations, as well as federal and state statutes on 
security and privacy of criminal history record 
information. 

(d) DCI may, at its discretion, conduct audits 
of Incident Base agencies to insure compliance 
with appUcable rules, regulations, and acceptable 
reporting standards. 

Statutory Authority G.S. 114-10; 114-10.1. 

SUBCHAPTER 4G - PENALTIES AND 
ADMINISTRATIVE HEARINGS 

SECTION .0100 - DEFINITIONS AND PENALTY 
PROVISIONS 

.0101 DEFINITIONS 

The following definitions shall apply through- 
out Chapter 4 of this Title: 
(I) Agency Penalties: 
(a) "Waming" means a letter of warning 
mailed to the agency head setting forth the 



6.6 NORTH CAROLINA REGISTER June 14, 1991 



267 



PROPOSED RULES 



administrative procedure that has been 
violated. It will also state what penalty 
will be imposed if the agency is found in 
violation agam within one year from the 
date of the audit report. 

(b) "Reprimand" means a letter of reprimand 
will be mailed to the agency head setting 
forth the administrative procedure that 
has been violated and the number of times 
this administrati\'e procedure has been vi- 
olated. It will also state what penalty will 
be imposed if the agency is found in vio- 
lation again within one year from the date 
of the audit report. A copy of this 
reprimand letter shall be forwarded to the 
head of the governmental body that the 
agency serves, i.e., city manager, county 
manager. 

(c) "Limited Operational Time" means the 
amount of operational time will be 
proportionate to the number of certified 
operators. 

(d) "Probation" means an agency wiU be 
placed in a probationary status for a pe- 
riod of one year from the date of the audit 
report. The agency wiQ be subject to a 
re-audit after 90 days from the date of the 
report. A re-audit does not clear the 
probationary status. 

(e) "Suspended Senices" means an agency's 
direct access to the SBI DC I computer 
system will be suspended after the Ad\i- 
sory Policy Board's finding of fault and 
the agency head must then appear before 
the Advisory Policy Board to respond to 
the cited violation. This suspension may 
be Hmited to certain tiles or may include 
a complete suspension of access, depend- 
ing on the administrative procedure vio- 
lated. The agency will be subject to a 
re-audit after 90 days of reinstatement of 
limited or full access. Further violations 
of the same regulation, within one year 
from the date of the suspension, or failure 
to appear before the Advisory' Policy 
Board to respond to the cited violation 
will be grounds to cancel the User Agree- 
ment with the agency. 

(2) Individual Penalties: 
(a) "Warning" means a letter of warning will 
be mailed to the certified operator with a 
copy of each warning letter to the agency 
head. This warning letter shall set forth 
the administrative procedure that has been 
\iolated and it will also state what penalty 
will be imposed if the operator is found m 
violation again within one year from the 
date of the audit report. 



(b) "Probation" means an op)erator's certif- 
ication will be placed in a probationary 
status for a period of one year from the 
date of the audit report. The agency will 
be subject to a re-audit after 90 days from 
the date of the audit report. A copy of the 
probationary' letter will be mailed to the 
operator's agency head and to the opera- 
tor. 

(c) "Suspend Certification" means the opera- 
tor will not be permitted to operate the 
DCI terminal for a period of 90 days. A 
copy of the suspension letter will be 
mailed to the operator's agency head and 
to the operator. The agency will be sub- 
ject to a re-audit after 90 days of rein- 
statement of an operator's certification. 

(d) "Revoke" means the operator's certif- 
ication will be revoked for one year or as 
otherwise provided in the rules. 

Statutory Authority G.S. 114-10; 1 14-10. 1. 

.0102 PENALTY PROVISIONS 

(a) Insecure location of DCI terminal. (12 
NCAC4F .0101): 

(1) First Offense - Agency Penalty (warning) 
with conditions that the terminal be se- 
cured within 48 hours. 

(2) Second Offense - Agency Penalty 
(reprimand) with conditions that the SBI 
Assistant Director for DCI and agency 
head must establish an agreed time period 
within which the terminal can be secured. 

(3) Third OtTense - Agency Penalty (suspend 
services) suspend access to computerized 
criminal history and drivers history data 
until the terminal is secured. 

(b) Uncertified operator. (12 NCAC 4E 
.0402): 

(1) First Offense - Agency Penalty 
(reprimand). 

(2) Second Offense - Agency Penalty (pro- 
bation) and operational time will be lim- 
ited. 

(3) Third Offense - Agency Penalty (suspend 
services) fuU ser\'ice removed for si.\ 
months from the date of the hearing. 
Probation is extended for one year from 
date of reinstatement. 

(4) Fourth Offense - Agency Penalty (suspend 
services) removal of terminal. 

(c) Unauthorized use of DCI certified operator 
identifier. (12 NCAC 4E .0402): 

First Offense - Individual Penalty (revoke) 
and, or seek criminal prosecution under any 
apphcable state or federal law for unauthorized 
access to a computer system. 



268 



6: 6 NOR TH CA ROLINA R EG IS TER June 14, 1991 



PROPOSED RULES 



(d) Transmission of non-criminal justice related 
information over DCI terminal. (12 NCAC 4F 
.0102): 

(1) First Offense - Individual Penalty (warn- 
ing)- 

(2) Second Offense - Individual Penalty (pro- 
bation) and Agency Penalty (warning is 
on same operator). 

(3) Tliird Offense - Individual Penalty (sus- 
pend certification) and Agency Penalty 
(reprimand if on same operator as second 
offense). 

(4) Fourth Offense - Individual Penalty (re- 
voke) and Agency Penalty (probation is 
on same operator as third offense). 

(e) Failure by the servicing agency (agency with 
direct access) to comply with the penalties that 
are placed upon the non-terminal (indirect ac- 
cess) agency. (12 NCAC 4E .0203): 

First and Subsequent Offenses - Servicing 
agency (agency providing direct access) wiU 
receive the same penalty that should have been 
imposed upon the non-terminal (indirect ac- 
cess) agency. 

(f) Dissemination of dri\er's history by a certi- 
fied operator to an unauthorized requestor. (12 
NCAC 4F .0701): 

(1) First Offense - Individual Penalty (pro- 
bation). 

(2) Second Offense - Individual Penalty (sus- 
pend) and Agency Penalty (warning). 

(3) Third Offense - Individual Penalty (re- 
voke). 

(g) Unauthorized use of driver's history' by au- 
thorized personnel other than certified operator. 
(12 NCAC4F .0701): 

(1) First Offense - Agency Penalty (warning) 
and the agency shall submit a written re- 
sponse to SBI/DCI of a plan and date by 
which departmental training is complete 
to prevent further violation of this Rule. 

(2) Second Offense - Agency Penalty 
(reprimand). 

(3) Third Offense - Agency Penalty (suspend) 
driver's history for six months. 

(h) Failure (if entire agency is more than 10 
percent deficient) to maintain a log of dissem- 
ination on "positive" driver's histor>' obtained 
through DCI for a period of one year from the 
date the record was received. (12 NCAC 4F 
.0701): 

(1) First Offense - Individual Penalty (warning 
to each operator that contributed) with a 
re-audit after 90 days. 

(2) Second Offense - Individual Penalty (pro- 
bation) and Agency Penalty (warning). 



(3) Third Offense - Individual Penalty (sus- 
pend certification) and Agency Penalty 
(reprimand). 

(4) Fourth Offense - Individual Penalty (re- 
voke) and Agency Penalty (probation). 

(i) Failure to utilize proper CCH message key 
accessing III whether or not resulting in an un- 
authorized dissemination. (12 NCAC 4F .0401, 
.0402, .0404, .0405, and .0407): 

(1) First Offense - Individual Penalty (warn- 
ing) with condition of agency re-audit af- 
ter 90 days. 

(2) Second Offense - Individual Penalty (pro- 
bation) and the agency shall submit a 
written response to the SBI/DCI of a plan 
and date by which training is complete to 
prevent further violation of this Rule. 

(3) Third Offense - Individual Penalty (sus- 
pend certification) and Agency Penalty 
(reprimand). 

(4) Fourth Offense - Individual Penalty (re- 
voke). 

(j) Improper use of CCH data in denial or re- 
vocation of a license or permit. (12 NCAC 4F 
.0406): 

(1) First Offense - Agency Penalty 
(reprimand). 

(2) Second Offense - Agency Penalty (pro- 
bation). 

(3) Third Offense - Agency Penalty (suspend 
ser\'ices) suspend access to computerized 
criminal histor\' non-criminal justice pur- 
poses for a period of six months. 

(4) Fourth Offense - Agency Penalty (suspend 
services) suspend access to computerized 
criminal history non-criminal justice pur- 
poses for one year. /Vfter one year of 
suspension the agency must seek rein- 
statement by appearing before the Advi- 
sory Pohcy Board. 

(k) Dissemination of CCH by a certified oper- 
ator for an unauthorized purpose or to an unau- 
thorized requestor. (12 NCAC 4F .0401, .0404, 
.0405, and .0407): 

(1) First Offense - Individual Penalty (pro- 
bation). 

(2) Second Offense - Individual Penalty (sus- 
pend certification) and Agency Penalty 
(warning). 

(3) Third Offense - Individual Penalty (re- 
voke). 

(1) Unauthorized use or dissemination of CCH 
by authorized personnel other than the certified 
operator. (12 NCAC 4F .0401, .0404, .0405, and 
.0407): 

(1) First Offense - Agency Penalty 

(reprimand) and the agency shall submit 
a written response to SBI/DCI of a plan 



6:6 NORTH CAROLINA REGISTER June 14, 1991 



269 



PROPOSED RULES 



and date by which training is complete to 
prevent further violation of this Rule. 

(2) Second Offense - Agency Penalty (suspend 
services) CCH services for a period of 90 
days. 

(3) Third Offense - Agency Penalty (suspend 
serv'ices) CCH ser%'iccs for a period of six 
months. 

(m) Failure (if the entire agency is more than 
10 percent deficient) to log all of the required 
fields on the CCH dissemination log. (12 NCAC 
4F .0401): 

(1) First Offense - Individual Penalty (warn- 
ing) with a re-audit after 90 days. 

(2) Second Offense - Individual Penalty (pro- 
bation) and Agency Penalty (warning). 

(3) Third Offense - Individual Penalty (sus- 
pend certification) and Agency Penalty 
(reprimand). 

(4) F'ourth Offense - Agency Penalty (pro- 
bation). 

(n) Failure (if the entire agency is more than 
10 percent deficient) to maintain a log of dis- 
semmation on "positive" cnminal historv" record 
information obtained through DC I for a period 
of one year from the date the record was received. 
(12 NCAC 4F .0401): 

(1) First OtTense - Indi\idual Penalty (warn- 
ing) to each operator that contnbuted and 
Agency Penalty (warning) with re-audit 
after 90 days. 

(2) Second OtTense - Individual Penalty (pro- 
bation) and Agency Penalty (reprimand) 
and agency head must submit a letter to 
DCl on a monthly basis (for 12 consec- 
utive months) \erifying that a self audit 
has been conducted. Failure to submit 
tliis \enfication letter will be considered a 
breach of the users agreement. 

(3) Third Offense - Individual Penalty (sus- 
pend certitication) and Agency Penalty 
(suspend services) suspend CCH for six 
months. 

Statutoty Authority G.S. 114-10: 114- 10. 1. 

SECTION .0200 - APPEALS 

.0201 INCORPOR.\TION OF G.S. 

CONCERNING ADMINISTR.\TI\ E 
HEARINGS 

General Statutes 150B-22 and 150B-23 are 
hereby incorporated into these procedures by 
reference including any and all future additions, 
modifications, changes and deletions. 

Slatutoiy Authority G.S. 114-10; 114-10.1. 



.0202 NOTICE OF VIOLATION 

(a) Upon determination that a violation of 
these procedures has occurred, DCI shall offi- 
cially inform the offending agency or employee 
by letter with return receipt requested. If the vi- 
olation is such that an operators certification 
could be suspended or revoked thereby affecting 
employment, the notice to the operator shall be 
by certified mail. 

(b) The official notification shall set forth the 
specific nature of the violation and will also cite 
the administrative procedure in question. 

(c) The official notification shall also state the 
specific steps involved in the event the agency or 
employee desires an informal hearing. These 
specific steps and time frames are as follows: 

(1) any request for an informal hearing to 
appeal the imposition of a penalty con- 
tained in these procedures must be made 
within 30 days from the date the official 
notification of the violation is received 
from DCI; 

(2) the request for an informal hearing must 
be in writing and signed by the agency 
head if an agency penalty or by the em- 
ployee if an indi%idual penalty and ad- 
dressed to the SBI Assistant Director for 
DCI, 407 North Blount Street, Raleigh, 
North Carohna 27601; 

(3) the request shall contain a clear and spe- 
cific statement that the agency or individ- 
ual is requesting an informal hearing. It 
should also contain a clear and specific 
statement of the reasons why DCI should 
not invoke a penalty; and 

(4) if a request for an informal hearing is not 
submitted within 30 days from the date 
the official notice is received, the imposed 
penalty wUl become fmal and absolute on 
the 31 St day following. 

Statutory Authority G.S. 114-10; 114-10.1. 

.0203 RIGHTS OF AGENCY OR EMPLOYEE 

(a) Any agency or employee charged with vio- 
lating DCI procedures shall be entitled to avail 
themselves of the appeals process as stated in 
N.C.G.S. 150B-22and 150B-23. 

(b) Any agency or employee charged with vio- 
lating any DCI procedures shall be entitled to a 
fair and impartial hearing in accordance with the 
principles of due process. 

Statutory Authority G.S. 114-10: 114-10.1. 

.0204 OBLIGATIONS OF DCI 

(a) DCI shall respond in a speedy fashion re- 
garding all notices and responses due any agency 



270 



6:6 l\ORTH CAROLIN.A REGISTER June 14, 1991 



PROPOSED RULES 



or employee that has violated a procedure or that 
is in the appeals process. 

(b) DC I shall be responsible for maintaining 
an atmosphere of fairness, procedural correctness 
and dignity to the hearing process over which it 
has jurisdiction. The Division shall also have the 
right to insist that any agency or individual in- 
volved in the appeals process conduct themselves 
in a professional and dignified manner. 

(c) DCI shall at all times be mindful of the fact 
that it is a service organization charged with a 
specific responsibility on behalf of the people of 
North Carolina and shall at no time demean, 
abuse, or politicize any of its functions in the area 
of audits, imposition of penalties, or its handling 
of the appeals process. The Division shall also 
have the right to expect that any agency or indi- 
vidual win also respect the integrity of the appeals 
process and refrain from any politicizing of the 
issues involved. 

Statutory Authority G.S. 114-10; 1 14-10.1. 

SECTION .0300 - INFORMAL HEARINGS 

.0301 STRUCTURE OF INFOR.MAL HEARING 
BOARD 

(a) Upon notification that an agency or indi- 
vidual intends to request an informal hearing re- 
garding the imposition of a penalty, the SBI 
Assistant Director for DCI shall convene a board 
to hear the matter. 

(b) The Board convened to hear the matter 
shall be the DCI Advisory Policy Board presided 
over by a Hearing Officer appointed by the SBI 
Assistant Director for DCI. 

(c) The Advisory Policy Board, is empowered 
to decide any and all issues brought before it rel- 
evant to the hearing. 

Statutory Authority G.S. 114-10; 114-10. 1. 

.0302 INFORMAL HEARING PROCEDURE 

(a) The informal hearing before the DCI Ad- 
visory Policy Board shall be conducted pursuant 
to the G.S. 150B-22. 

(b) The Hearing Officer, shall preside over the 
hearing and shall inform the participants regard- 
ing the format for the proceeding. The Hearing 
Officer, in the course of his or her remarks shall 
state the specific Administrative Procedure(s) 
that has allegedly been violated and the resultant 
penalty to be applied. 

(c) The facts of the issue shall then be pre- 
sented first by the audit team that discovered the 
violation followed by the sited agency and/or in- 
dividual. The individual members of the Advi- 
sor>' Policy Board shall, at the end of each 



presentation of the facts, be allowed to direct 
questions to the speaker regarding what he or she 
has stated. 

(d) Any agency or individual appearing before 
the Advisory Policy Board for a hearing may 
utilize the services of an attorney as their 
spokesman. 

(e) After all presentations have been made, the 
auditor and all persons representing the appealing 
agency or individual shall leave the hearing room 
and the Board shall then enter into its deliber- 
ations. If the Board so determines it shall re- 
commend that the imposed penalty be modified 
or dismissed. 

(f) The SBI Assistant Director for-DCI, at his 
or her discretion may modify the penalty upon 
the recommendation of the Board. 

Statutory Authority G.S. 114-10; 114-10.1. 

.0303 NOTIFICATION OF RESULTS AND 
RIGHT OF APPEAL 

(a) DCI shall notify aU of the parties of the re- 
sults of the hearing within two weeks. The no- 
tification shall be by letter signed by the SBI 
Assistant Director for DCI. 

(b) The notifications shall inform the parties 
of their right to appeal the informal hearing de- 
cision to the Office of Administrative Hearings 
pursuant to G.S. 150B-23. 

Statutory Authority G.S. 114-10; 114-10.1. 

SECTION .0400 - FOR.MAL HEARINGS 

.0401 FORMAL HEARINGS 

(a) An agency or individual cited with a vio- 
lation of DCI's Administrative Procedures may 
elect to have a formal hearing instead of follow- 
ing the informal hearing procedures. 

(b) Formal hearings shall be conducted 
through the Office of Administrative Hearings 
pursuant to G.S. 150B-23. 

Statutory Authority G.S. 114-10; 1/4-10.1. 

TITLE 15A - DEPARTMENT OF 

EXMRONMENT, HEALTH, AND 

NATURAL RESOURCES 

ly otice is hereby given in accordance with G.S. 
1 SOB- 12 that the Environmental .Management 
Commission (Division of Em-ironmental Manage- 
ment) intends to amend rules cited as 15A NCA C 
2B .0101, .0104, .0202, .0211, .0301 - .0311, 
.0313, .0315 - .0317. 



6:6 NORTH CAROLINA REGISTER June 14, I99I 



271 



PROPOSED RULES 



1 he proposed effective date of this action is 
March I. 1992. 

1 he public hearing will be conducted at the fol- 
lowing times, dates and locations: 

August 14, 1 99 1 

7:00 p.m. 

A uditorium 

Montgomery Community College 

Old Biscoe Road 

Troy, N.C. 

August 15, 1991 

7:00 p.m. 
Ground Floor Hearing Room 

Archdale Building 

512 North Salisbury Street 

Raleigh, N.C. 

August 19, 1991 

7:00 p.m. 

Health Career A uditorium 

Guilford Technical Community College 

Jamestown, N.C. 

August 20, 1991 

7:00 p.m. 

A uditorium 

Catawba Valley Community College 

Hickory, N.C. 

August 21, 1991 

7:00 p.m. 

Humanities Lecture Hall 

UNC - Asheville 

Asheville, N.C. 

August 22, 1991 

7:00 p.m. 

Tri-County Community College 

Murphy, N.C. 

August 26, 1991 

7:00 p.m. 

Courtroom 

New Chowan County Courthouse 

South Broad Street 

Edenton, N .C. 

August 27, 1991 

7:00 p.m. 

Bryan Auditorium, Morton Hall 

UNC - Wilmington 

60/ South College Road 

Wilmington, N.C. 



/i. fiscal note has been prepared and may be ob- 
tained from the agency. 

y^omment Procedures: Notice is hereby given 
of a series of public hearings to be held by the 
North Carolina Department of Environment, 
Health, and Natural Resources on behalf of the 
Environmental Management Commission (EMC) 
concerning the proposed reclassification of all of 
the State's surface raw drinking water supply wa- 
ters in order to make the water supply classifica- 
tions consistent with water supply watershed 
protection rules (water quality standards and 
management requirements) adopted by the EMC 
on December /3, 1 990 An accordance with G.S. 
143-214.5. In addition to the notice being given 
on the proposed changes to the reclassification of 
the State's surface water supplies, notice is also 
hereby given of proposed re\'isions to the surface 
water supply protection rules previously adopted 
bv the EMC on December 13, 1990 in accordance 
with G.S. 143-214.5. 

The purpose of the eight public hearings being 
noticed herein is to receive public comment on the 
proposed reclassifications of each surface water 
supply, including any more detailed information, 
such as verification of previously undocumented 
land use or point source discharge activities, that 
may hcive an influence on the final classification 
assignment and to receive public comment on new 
proposed revisions to the surface water supply 
protection rules adopted by the Commission on 
December 13. 1990. These proposed revisions to 
the State's surface water supply classifications and 
water supply protection rules will, if adopted, re- 
sult in modifications to the North Carolina rules 
governing procedures for assignment of water 
quality standards, the classifications and water 
quality standards applicable to surface waters of 
North Carolina and assignment of stream classi- 
fications (I5A NCAC2B .0100, .0200 and .0300). 
THESE CLASSIFICATIONS ASD ASSOCIATED 
WATER SUPPLY PROTECTION RULES REP- 
RESENT A SIGXITICANT CHANGE TROM 
PREVIOUS PRACTICES SINCE LOCAL GOV- 
ERNMENTS MUST ADOPT ORDINANCES TO 
EITHER LIMIT DEVELOPKtENT DENSITY OR 
REQUIRE STORMW.\TER CONTROLS WITHIN 
WATER SUPPLY WATERSHEDS OR PRO- 
TECTED AREAS WITHIN THEIR JURISDIC- 
TION. 

.Additional information concerning the proposed 
reclassifications and rules revisions is presented in 
the Explanation of Notice provided herein. IT IS 
VERY IMPORTANT THAT ALL INTERESTED 
AND POTENTIALLY AFFECTED PERSONS OR 



272 



6:6 NORTH CAROLINA REGISTER June 14, 1991 



PROPOSED RULES 



PARTIES READ AND FULLY UNDERSTAND 
THIS ENTIRE NOTICE including the Explana- 
tion of the Notice and the proposed rules revisions 
as described herein. Furthermore, IT IS VERY 
IMPORTANT THAT ALL INTERESTED AND 
POTENTIALLY AFFECTED PERSONS OR PAR- 
TIES MAKE THEIR VIEWS AND OPINIONS 
KNOWN, perferabfy in writing, TO THE EMC 
WHETHER THEY BE IN FAVOR OF OR OP- 
POSED TO ANY OR ALL PROVISIONS OF THE 
PROPOSED WATER SUPPLY RECLASSIF- 
ICATIONS AND RULES REVISIONS NOTICED 
HEREIN. In addition, interested and potentially 
affected persons or parties should provide doc- 
umentation of perceived economic, environmental 
and social costs or benefits including any infor- 
mation, such as verification of previously undocu- 
mented land use or point source discharge 
activities, that may have an influence on the final 
classification assignment. It is very important that 
all interested and potentially affected persons or 
parties make their views known to the EMC 
whether in favor of or opposed to any and all 
provisions of the proposed water supply reclassif- 
ications and rules revisions being noticed herein, 
since THE EMC MAY ADOPT MORE OR LESS 
STRINGENT WATER SUPPLY PROTECTION 
CLASSIFICATIONS, STANDARDS OR MAN- 
AGEMENT REQUIREMENTS THAT MAY DIF- 
FER FROM THOSE BEING NOTICED HEREIN 
BY BEING MORE OR LESS STRINGENT, IF 
THE EMC DETERMINES THAT THE FINAL 
ADOPTED RULES ARE A LOGICAL OUT- 
GROWTH OF THE NOTICE, THE PUBLIC 
HEARINGS AND THE HEARING COMMENTS 
RECEIVED, IN ACCORDANCE WITH THE 
EMCs AUTHORITY PURSUANT TO N.C.G.S. 
1 SOB- 12 TO MAKE CHANGES IN FINAL RULES 
WITHOUT RENOTICE AND REHEARING AS 
LONG AS THE FINAL RULES ARE A LOGICAL 
OUTGROWTH OF THE PUBLIC HEARING AND 
PUBLIC COMMENT PROCEEDINGS. 

A II persons interested in or potentially affected 
by this matter are invited to attend the public 
hearings being noticed herein. Comments, data, 
statements and other information may be submit- 
ted in writing prior to, during or within thirty (30) 
days after the date of the last public hearing. 
Written public comments will be accepted, there- 
fore, through September 30, 1991 inclusive. 
Comments may also be presented orally at the 
hearings. So that all persons desiring to speak 
may have an opportunity to do so, the length of 
verbal statements may be limited at the discretion 
of the hearing officers. The statutory authority for 
these actions is as follows: N.C. General Statutes 
143-214.1. 143-214.5, 143-215.3(a)( I ) and (3). 
The proposed effective date of the final adopted 
water supply classifications and standards ndes is 
March 1, 1992. ALL INTERESTED AND PO- 



TENTIALLY AFFECTED PERSONS OR PAR- 
TIES ARE STRONGLY ENCOURAGED TO READ 
THIS ENTIRE NOTICE INCLUDING THE EX- 
PLANATION OF NOTICE PROVIDED HEREIN 
AND TO OBTAIN ADDITIONAL INFORMATION 
ON THESE PROPOSALS BY WRITING OR 
CALLING: Stephen Zoufaly; Division of Envi- 
ronmental Management; P.O. Box 29535; 
Raleigh. North Carolina 27626-0535; (919) 
733-5083. 



EXPLANA TION OF NOTICE: 

In June of 1989, the NC General Assembly 
adopted House Bill 156 (the Water Supply 
Watershed Protection Act codified at G.S. 
143-214.5) which mandates that the Environ- 
mental Management Commission (1) adopt 
statewide minimum water supply watershed pro- 
tection rules (classifications and associated 
standards and management strategies) by Janu- 
ary 1, 1991; and (2) reclassify all of the State's 
surface water supply waters in accordance with 
these rules by January 1 , 1992. 

In order to meet the first statutory deadline of 
G.S. 143-214.5, the EMC adopted surface water 
supply protection rules on December 13, 1990. 
These rules were originally proposed in a public 
notice published on June 15, 1990 in volume 5, is- 
sue 6 of the North Carolina Register, pages 
420-427. The water supply protection rules 
adopted by the EMC on December 13, 1990 in- 
cluded changes to the rules that were noticed on 
June 15, 1990. The rules that were adopted on 
December 13, 1990, including the changes which 
were made as a logical outgrowth of the public 
hearings held in August of 1990, are being noticed 
in their entirety herein in order to receive further 
public comments on their content, and are shown 
in italics in this notice. Those parts of the rules 
that were adopted on December 13, 1990 (as 
shown by italics) that represent either deletions 
from or additions to the existing rules (15A 
NCAC 2B .0100, .0200 and .0300) are shown by 
either crossed- through italics or underscored ital- 
ics, respectively. 

There are also new revisions being proposed for 
the water supply protection ndes that were 
adopted on December 13, 1990. The new pro- 
posed revisions are shown in bold print with de- 
letions from and additions to the existing and 
adopted rules below indicated by crossed- through 
and underscored language, respectively. In any 
case, existing nde language that is proposed to 
remain unchanged is printed in a normal fashion. 
.-Ill of the re\isions to these rules indicated in ei- 



6:6 NORTH CAROLIN.i REGISTER June 14, 1991 



273 



PROPOSED RULES 



iher italics or bold print if they are adopted by the 
EMC as proposed are expected to become effec- 
tive on March 1, 1992. 

There are two types of changes being proposed 
as new revisions to the rules. As indicated previ- 
ously, new proposed revisions are shown in bold 
print. The first type of revisions are clarifications 
of language. Examples of this type of change are 
the addition of the specific references to 
stormwater discharges in ISA NCAC 2B .0101(c) 
and the proposed revisions of the narrative de- 
scriptions for point source discharges for IVS-II. 
WS-IU and WS-IV classifications in J5A NCAC 
2B mil. Subparagraphs (d)(2), (e)(2) and 
(f)(2), respectively. 

The second type of new proposed revisions are 
more substantive changes which involve several 
major issues. Determining what constitutes "ex- 
isting dex'elopment" for the purposes of imple- 
menting these rules; that is, determining at what 
point in their development planned or proposed 
projects may be "grandfathered" under these 
rules, is one such major issue. A definition of ex- 
isting development which is intended to address 
this issue is proposed at ISA NCAC 2B .Ol04(s). 
As this definition is currently proposed, existing 
development would include projects already com- 
pleted or in progress, projects with a recorded plat 
or areas that have been zoned as of the closing 
date of the public hearings for the January 1 , 1992 
reclassification proceedings (September 30. 
1991). The rule goes on to state that existing 
development is only required to comply with these 
rules to the "maximum extent practicable" . For 
projects that are already completed or in progress, 
no modifications would be expected. For a re- 
corded platted project that does not conform to 
the water supply requirements, it would be the re- 
sponsibility of local government to determine if 
there are practicable options that could be re- 
quired to bring the project more in line with the 
requirements. For large areas that are zoned but 
mainly undeveloped, there is a much greater abil- 
ity to conform to the water supply requirements. 
In this case, the "maximum extent practicable" 
clause is intended to respect the uses that have 
been zoned (industrial, for example) even if it 
would not otherwise be allowed, but the density 
of development of that use should conform to the 
rules. If this would require local governments to 
allow stormwater detention ponds and they would 
prefer the low density option, they would be ex- 
pected to rezone to the lower density. Projects 
with a site specific development plan approved by 
local government under existing zoning in compli- 
ance with G.S. l60A-385(b) prior to September 



30, 1991 could be developed as approved. SPE- 
CIFIC COMMENTS ON THE IMPLEMENTA- 
TION OF THE DEFINITION OF EXISTING 
DEVELOPMENT AS PROPOSED IN ISA NCAC 
2B .0104(s) ARE BEING SOLICITED. WHETHER 
IN FAVOR OF OR OPPOSED TO THE PRO- 
POSED IMPLEMENTATION PROCEDURE DE- 
SCRIBED HEREIN. 

Another major issue for which comments are be- 
ing solicited is the definition of the critical area for 
a water supply reservoir [ISA NCAC 28 
. 0202 (14) J. The definition of the critical area for 
a water supply reservoir was adopted by the EMC 
on December 13, 1990 as an area extending either 
one mile from the normal pool elevation of the 
reservoir in which the intake was located or to the 
ridge line of the watershed (whichever distance is 
shortest). This is an adopted provision of the 
water supply protection rules and is not a new 
proposal. The definition of the critical area for a 
water supply reservoir was originally proposed (as 
noticed in the North Carolina Register on June IS, 
1990) as an area extending Vi mile, rather than 
I mile, from the normal pool elevation of the res- 
ervoir and the adoption of the I mile critical area 
for reservoirs continues to be controversial. 
Therefore, THE EMC IS SPECIFICALLY SO- 
LICITING COMMENTS ON THE DEFINITION 
OF CRITICAL AREA FOR WATER SUPPLY 
RESERVOIRS. WHETHER THE COMMENTS 
ARE IN FAVOR OF OR OPPOSED TO THE DE- 
FINITION AS DESCRIBED HEREIN. 

Other noteworthy new proposed rules revisions 
include: (I) proposed exemptions for minor oc- 
currences of nonconforming activities which could 
be allowed by the EMC on a case-by-case basis 
after reclassification [ISA NCAC 2B .0l04(l)[; 
(2) specific rej'erence to best management prac- 
tices that are required by law or by rule for high- 
way construction, agricultural and sihicultural 
activities [ISA NCAC 2B .0104, Subparagraphs 
(m), (q) and (u), respectively [; (3) a require- 
ment for a 10 foot minimum vegetated buffer or 
equti'alent control to be maintained in IVS-I 
watersheds and critical areas of US- II, WS-III 
and IVS-IV watersheds for agricultural activities 
[ISA NCAC 2B .0l04(q)]; (4) a revision of the 
maximum built upon area allowed with 
stormwater controls under the high density option 
jar WS-lll watersheds outside the critical area 
[ISA NCAC 2B .02ll(e)(3)(B)(IV)[; (S) a 
revision addressing the expansion of existing dis- 
charges [ISA NCAC 2B .OI04(r)[: and (6) 
clarijlcation addressing new industrial connections 
and expansions to existing municipal discharges 
with a pretreatment program in WS-IV 
watersheds or protected areas [ISA NC.4C 2B 



274 



6:6 NORTH CAROLIN.A REGISTER June 14, 1991 



PROPOSED RULES 



.0211(f)(2)]. COMMENTS ARE BEING SO- 
LICITED BY THE EMC ON THE ENVIRON- 
MENTAL, ECONOMIC AND SOCIAL COSTS 
AND BENEFITS OF ANY AND ALL OF THE 
PROVISIONS OF THESE RULES. WHETHER 
THE COMMENTS ARE IN FAVOR OF OR OP- 
POSED TO THESE RULES AND WHETHER 
THE COMMENTS ARE ON THE NEW PRO- 
POSED REVISIONS (shown in bold print). THE 
PROVISIONS OF THE RULES ADOPTED BY 
THE EMC ON DECEMBER 13. 1990 (shown in 
italics) OR ON THE EXISTING WATER SUPPLY 
PROTECTION RULES (shown in normal 
typeface). COMMENTS ARE ALSO BEING SO- 
LICITED ON THE PROPOSED RECLASSIF- 
ICATIONS OF EACH SURFACE WATER 
SUPPLY, ESPECIALLY INCLUDING INFOR- 
MATION THAT MAY HAVE AN INFLUENCE 
ON THE FINAL CLASSIFICATION ASSIGN- 
MENT. Water supply reclassifications are pro- 
posed for surface waters of the Broad River Basin, 
Cape Fear River Basin. Catawba River Basin. 
French Broad River Basin, Hiwassee River Basin. 
Little Tennessee River Basin, Lumber Rrver Basin, 
Neuse River Basin, h'ew River Basin, Pasquotank 
River Basin, Roanoke River Basin, Savannah 
River Basin, Tar-Pamlico River Basin, Watauga 
River Basin and the Yadkin River Basin. COM- 
MENTS ARE BEING E.X'PRESSLY SOLICITED 
BY THE EMC ON ANY AND ALL OF THE PRO- 
VISIONS OF THIS NOTICE. WHETHER THE 
COMMENTS ARE IN FAVOR OF OR OPPOSED 
TO ANY OR ALL PROVISIONS OF THESE 
RULES. The EMC is soliciting these comments 
so that THE EMC MAY ADOPT MORE OR LESS 
STRINGENT WATER SUPPLY PROTECTION 
AND MANAGEMENT REQUIREMENTS THAT 
MA Y DIFFER FROM THOSE BEING PROPOSED 
HEREIN IF THE EMC DETERMINES THAT 
THE FINAL ADOPTED RULES ARE A LOGICAL 
OUTGROWTH OF THE PUBLIC NOTICE, 
HEARINGS AND PUBLIC COMMENTS RE- 
CEIVED. 

CHAPTER 2 - ENVIRONMENTAL 
MANAGEMENT 

SUBCHAPTER 2B - SURFACE WATER 
STANDARDS: MONITORING 

SECTION .0100 - PROCEDURES FOR 

ASSIGNMENT OF WATER QUALITY 

STANDARDS 

.0101 GENERAL PROCEDURES 

(c) Freshwater Classifications. 
(3) Class WS-I; waters protected as water 
supplies which are in natural and umnhab 
ke4 undeveloped watersheds: point source 
discharges of treated waste\vater are per- 
mitted pursuant to Rules .0104 and .021 1 
£1 this Subchapter; local nonpoint source 



control programs t_o control nonpoint 
sources and stormwater discharges of pol- 
lution are required: suitable for all Class 
C uses; 

(4) ^ Class WS I; WS-II; waters protected 
as water supplies which are generally in 
natural ^nd uninhabited er^ predominantly 
undeveloped f«6>* wbanined) watersheds; 
«9 point source discharges of treated 
wastewater are permitted pursuant t£ 
Rules .0104 and .0211 of this Subchapter; 
except (hose existing discharges (Qualifying 
fer^ a General Permit according ^ ike re- 
quiroments sf -ISA .NCA C M4- .0131 spe- 
cifically approved kf the Commission ai 
tke time ef classif i calion; and local land 
management nonpoint source control pro- 
grams to control nonpoint soureo sources 
and stormwater discharges of pollution are 
required: suitable for all Class C uses; 

(5) fH Class WS II: WS-III; waters pro- 
tected as water supplies which are gener- 
ally in low to moderately developed 
(urbanized) watersheds; point source dis- 
charges of treated wastewater are permit- 
ted pursuant t_o Rules .0104 and .0211 of 
this Subchapter: discharges are restricted 
te domestic wastewater (sewage) er^ in- 
dus trial non process waters specifically ap- 
proved ky dte Commission; local land 
management nonpoint source control pro- 
grams to control nonpoint souroo sources 
and stormwater discharges of pollution are - 
required; suitable for all Class C uses; 

(6) -fS-)- Class ] ' VS III; water supply segment 
with n» categorical restrictions »n 
watershed development er discharges; 
Class I VS- 1 V: waters protected as water 
supplies which are generally i_n moderately 
to highly developed watersheds: point 
source discharges of treated wastewater 
are permitted pursuant t£ Rules .0104 and 
.021 1 of this Subchapter: local nonpoint 
source control programs t_£ control non- 
point souroo sources and stormwater dis- 
charges of pollution are required: suitable 
for all Class C uses; 

Statutory Authority G.S. 143-214.1; 143-215.3 
(a)(1). 

.0104 CONSIDERATIONS IN ASSIGNING 
AND IMPLEMENTING W ATER 
SUPPLY CLASSIFICATIONS 

(a) In determining the suitability of waters for 
use as a source of water supply for drinking, cu- 
hnary or food processing purposes after approved 
treatment, the Commission will be guided by the 



6:6 NORTH CAROLINA REGISTER June 14, 1991 



275 



PROPOSED RULES 



physical, chemical, and bacteriological maximum 
contaminant levels specified by Environmental 
Protection Agencv regulations adopted pursuant 
to the PubUc^'Health Ser%ice Act, 42 U.S.C. 201 
et seq., as amended by the Safe Drinking Water 
Act, 42 U.S.C. 300(f) et seq. In addition, the 
Commission will be guided by the requirements 
for unfiltered and filtered water supplies and the 
maximum contaminant levels specified in the 
North Carolina Rules Governing Public Water 
Supplies. 15A NCAC 18C .1100, .1200 and .1500 
and comments provided by the Disision of Hn- 
vironmental Health. 

(b) ^ conskiofing ike rccltissiricaiion ef wolcrs 
tw C/ttfs ]VS {. *4e Commission wUi evalualc local 
land «*(? miinagoinonl programs h* proiccl 4te 
tfuali(y of ihoso walors from nonpo i nl sources €f 
pollution. Local irmd «#<? managcmoni programs 
*W inodificadons te (hose programs must be tip- 
provcd kf" fAe Commission *W w# be kcpl 9nfii€ 
bf W+t? Division of Em-ironfHcnlal Managcmoni 
tmd Division of Hmironmcnlal Ucalih. II 'aicrs 
formerly classified <*# 74-4 h4# be considered ft» be 
proiecied tts retjuired fo*^ imfdlered water supplies 
bf ike Commission of Health Sen-ices i L^A 
:\"C f C -b^ ./ /GO > iHitU alternative plans r#^ 
submitted fo^ approval. A II local governments 
that have land use authority within water supply 
•lyatershcds and the critical and protected areas 
of Class \l'S-Il water supplies will adopt and 
enforce ordinances that or a minimum meet the 
reqidrements of G.S. 143-214^5 and this Sub- 
chapter. Local governments may adopt and en- 
force more stringent controls. Local management 
programs and modifications t_o these pro'^ratns 
must be approved by the Commission and will be 
kept on file by the Division of Environmental 
Management. Dhision o/ Lmironmcntal Health 
and the Division o£ Community .Assistance. In 
considering the reclassification of waters for water 
supply purposes the Commission will evaluate local 
land use management programs m order t£ protect 
the quality ijf these waters from existing and fu- 
ture point and nonpoint sources of pollution. 

(c) bn considering fbe reclassification t*f waters 
jw Class W.S IL fbe Commission wUi evaluate lo- 
eai land «*<? management programs io protect fbe 
t^uality Bf these waters from existing rmd future 
nonpoint sources of pollution. Loral management 
programs tmd modifications W these programs 
must be approved bf fbe Commission a»d wUl be 
kepi- tw y*A? bf ike Division ef Environmental 
\[anagemenl tufid Division of Environmental 
flealth. .411 waters used for water supply purposes 
shall be classified t_o tjie most appropriate water 
supply classification as_ determined by tite Com- 
mission. 



(d) In considering the reclassification of waters 
tw Class yVS III. for water supply purposes, the 
Commission wfW. take into consideration the rel- 
ative proximity, quantity, composition, natural 
dilution and diminution of potential sources of 
pollution to determine that risks posed by all 
significant p>oUutants are adequately considered. 

(e) For the purpose of the January 1, 1992 re- 
classitication process, development projects in 
progress as demonstrated by significant resources 
ha\-ing been e.xpended on building the project or 
projects platted by Januar.' 1, 1991 wOl be 
deemed to be existing. Local governments 
should, as practicable, bring nonconforming uses 
into compliance with the water supply rules. 

(f) Wherever in_ this Subchapter ij_ /j provided 
that local governments assume responsibility for 
operation and maintenance of engineered 
stormwater controls (controls I, this s/iall be con- 
strued t_o require responsible local governments t_o 
inspect such controls at_ least once per year t_o_ de- 
termine wf let her the controls are performing as 
designed and intended. Records of inspections 
shall be maintained on forms approved or supplied 
by the Division. Local governments may require 
payment of reasonable inspection fees by entities 
which own the controls. as_ authorized by law, fn 
the event inspection shows tfiat a control « not 
performing adequately, the local government shall 
order I fie owning entity t_o take corrective actions. 
If ijie_ entity f'aifs t_£ lake sufficient correctr\-e 
actions. I fie local government may impose civil 
penalties and pursue oilier a\-aifabfe remedies m 
accordance with law, ffie availability of new en- 
gineered stormwater controls as an alternative t£ 
lower development density and other measures 
under tfie provisions of this Subchapter and local 
ordinances approved by the Commission shall be 
conditioned on the posting of, adequate financial 
assurance, m tfw form of a cash deposit with or 
bond made payable to the responsible local gov- 
ernment, or oilier acceptable security. Lhe estab- 
lishment of a stormwater utility by the responsible 
local government shall be deemed adequate fi- 
nancial assurance. Lhe purpose of the required 
financial assurance is to assure that maintenance. 



repairs or reconstruction necessary for adequate 
perf'ormance of the controls may be made by tfie 
owning entity or tjie local government which may 
choose t_o assume ownership and maintenance re- 
sponsibility. 

i g I Where higher density developments are al- 
lowed, stortrrwater control systems mitst use wet 
detention ponds as described in J5A A C-1 C 211 
.I003( gi(2 j. I'il. t'kl and ill. Where engineered 
stormwater control structures are required for 
nonresidential development, these structures must 
b£ handled on a profect-hy-profect basis. 



2^6 



6:6 iXORTH CAROLLX.A REGISTER June 14, 1 991 



PROPOSED RULES 



(h) Where no practicable alternative exists, 
discharge from groundwater remediation projects 
addressing, water quality problems will be allowed 
i_n oH water supply classiflcations. 

(i) To further the cooperative nature of the 
water supply watershed management and pro- 
tection program provided for herein, local govern- 
ments with jurisdiction over portions of classified 
watersheds and local governments which derive 
their water supply from within such watersheds are 
encouraged to establish joint water (Quality moni- 
toring and information sharing programs, by 
interlocal agreement qr_ otherwise. Such cooper- 
ative programs shall be established in consultation 
with the Division. 

(j) Where no practicable alternative exists other 
than surface water discharge, previously unknown 
existing unpermitted wastewater discharges will 
incorporate the best possible technology treatment 
as deemed appropriate by the Division. 

(k) The Commission may designate water sup- 
ply watersheds or portions thereof as critical water 
supply watersheds and impose management re- 
quirements that are more stringent than the mini- 
mum statewide water supply watershed 
management requirements. 

(Ij Variances m' Exemptions may be allowed by 
the Commission on a case-by-case basis for minor 
occurrences of nonconforming acii\'ities prior t£ 
reclassification m order [o obtain a higher classi- 
fication or bv the Commission at the request of a 
local government on a case-by-case basis after 
reclassification. Discharges of treated wastewater 
existing a/ tjie_ time of reclassification may be_ re- 
quired t_o meet more stringent effluent limits as 
determined by the Division. Consideration of all 
practicable alternatives t£ surface water discharge 
must be documented. Upon rcclnssifieation, tUl 
new activities must comply with the water supply 
rules efthfs Subchapter. 

(m) The construction of ne^v roads and bridges 
and non-residential development should minimize 
built -upon area, divert stormwater away from 
surface water supply waters as must as possible, 
and employ best management practices i BM Ps) 
£0 minimize water quality impacts. To the extent 
practicable, the construction of new roads i_n the 
critical area should be avoided. The Department 
of transportation shall use BMPs as outlined in 
their document entitled "Water Supply 
Watershed Best Management Practices". 

( n) Activities within water supply watersheds 
are also governed by the North Carolina Rules 
Governing Public Water Supplies, 15A NCAC 
18C .1100, .1200 and .1500. Proposed expansions 
of treated wastewater discharges to water supply 
waters must be approved by the Division of Emi- 
ronmental Health. 



(o) Local governments are responsible for cor- 
rectly delineating the approximate normal pool 
elevation for backwaters of water supply reservoirs 
for the purposes of determining the critical and 
protected area boundaries as_ appropriate. Local 
governments must submit t_£ th£ Division the 
boundaries of the critical and protected areas us- 
ing 1:24.000 scale U.S.G.S. topographical maps. 
All revisions (expansions or deletions ) t£ these 
areas must be submitted to the Division and ap- 
proved by the Commission prior t_o_ local govern- 
ment revision. 

( p) During the 1992 statewide reclassification 
of water supply watershed classifications, the 
Commission shall examine each water supply 
watershed where any new sanitary landfill for the 
disposal of nonhazardous solid waste is_ proposed 
t_o be_ located, and there was pending on June 30, 
1990 a petition for reclassification of such waters 
[o a more protective classification, t_o_ determine 
whether more restrictive standards should be es- 
tablished for the siting of such new sanitary land- 
fills. The Commission, in the reclassification, may 
establish standards more restrictive than those i_n 
1 5.4 \CA C 2B .021 / when required to protect the 
water supply from inappropriate additional 
sources of potential contamination due [o pro- 
posed new sanitary landfills within the water sup- 
ply watershed. 

(q) Local governments will encourage partic- 
ipation in the Agricultural Cost Share Program. 
Agricultural activities are required to implement 
the provisions of the Food Security Act of 1985 
and the Food, Agriculture. Conservation and 
Trade Act of 1990 (Public Law 101-624). The 
following shall be required within WS-I 
watersheds and the critical areas of W S-II, 
\\ S-in and WS-I\' watersheds: agricultural ac- 
tivities shall maintain a minimum 10 foot vege- 



tated buffer, or equivalent control as determined 
by the Soil and Water Conservation Commission, 
along all perennial waters indicated as a solid blue 
line on L .S.G.S. 1:24.000 (7.5 minute) scale 
topographic maps; and animal operations greater 
than UM) animal units shall employ Best Man- 
agement Practices [as defined by Rule .0202(6) 
of this Subchapter! recommended by the Soil and 
Water Conservation Commission. 

(r) In areas where some category of a new 
wastewater discharge is prohibited, expansions of 
existing discharges of that category will be al- 
<owed if there is no increase m pollutant loading. 

(s) Existing development, as defined for the 
purposes of these Rules means projects already 
completed or in progress as demonstrated by sig- 
nificant resources having been expended on 
building the project, or projects with a recorded 
plat or areas zoned as of the closing date of the 



6:6 NORTH CAROLINA REGISTER June 14, 1991 



277 



PROPOSED RULES 



public hearings for the Januan K 1992 reclassif- 
ications. Kxisting development is only required 
to comply with these Rules to the maximum ex- 
tent practicable. Redevelopment is allowed, al- 
thout;h the requirements of these Rules shall be 
complied with to the maximum extent practica- 
ble. 

(t) Commencement of new activities within the 
water supplies by local and State government and 
individuals as of the closing; date of the public 
hearings for the January U 1992 reclassifications 
shall comply with the requirements and intent of 
these Rules. WTien a local government permits 
activities subsequent to Ijic closing date of the 
public hearings for the .January j_, 1992 reclassif- 
ications and, as a result of permitting such activ- 
ities, the area within that local government's 
jurisdictions is no longer in compliance with the 
management requirements of the classification 
proposed bv the Commission, more stringent 
management requirements shall be implemented 
in the remainder of the jurisdiction m a manner 
which at least compensates for the inadequacies 
of the local program which resulted from permit- 
ting such activities. 

(u) Sihiculture activities are required to imple- 
ment the proNisions of the Forest Practices 
(juidelines Related to \\ ater Quality (15.A 
\CA( 11 .0101 - .(>2()9). 

(v) Local governments shall, as the existing 
laws allow, develop, implement, and enforce com- 
prehensive nonpoint source and stormwater dis- 
charge control programs to reduce water pollution 
from activities vvithin water supply watersheds 
such as development, forestry . landfills, mining, 
on-site sanitary sewage systems which utilize 
ground adsorption, toxic and hazardous materi- 
als, transportation, and water basetl recreation. 

(w) \\ hen the Commission assumes a local wa- 
ter supply protection program all Ux-al permits 
authorizing construction and development activ- 
ities as regulated by statewide minimum water 
supply watershed protection rules of this Sub- 
chapter must be approved by the Commission 
prior to local government issuance. 

(x) Local government must notify in writing 
and obtain permission from the Commission or its 
designees, prior to local government approval, all 
activities (such as platting, zoning, building per- 
mits, subdivision ordinances or activities that will 
require a variance) within the affected water sup- 
ply area that are inconsistent with the statewide 
minimum >vater supply protection rules of this 
Subchapter. 

(y) A model local water supply watershed man- 
agement and protection ordinance, as approved 
by the C onmiission in accordance with fi.S. 



143-214.5. is on file with the Office of .Adminis- 



trative Hearings and may be obtained at no 
charge by writing to: Director, Division of Envi- 
ronmental Management. Post Office Box 29535. 
Raleigh. .North Carolina 27626-0535. 



Statutory Authority G.S. 
143-215.3 (a)(1). 



1 43-2 1 4. 1; 143-214.5; 



SF.CTION .0200 - CLASSIFIC.UIONS AND 

\\ ATER QUALITY STANDARDS .APPLICABLE 

TO SLRFACE WATERS OF NORTH CAROLINA 

.0202 DEFINITIONS 

The definition of any word or phrase used in 
these rules shall be the same as given in Article 
21, Chapter 143 of the General Statutes of North 
Carolina. The following words and phrases, 
which are not defined in this article, will be in- 
terpreted as follows: 
(1) Acute toxicity to aquatic Life means 
lethahty or other harmful effects sustained 
by either resident aquatic populations or in- 
dicator species used as test organisms in a 
controlled toxicity test due to a short-term 
exposure (relative to the life cycle of the 
organism) to a specific chemical or mixture 
of chemicals (as in an effluent). Short-term 
exposure for acute tests is generally 96 hours 
or less. Acute toxicity will be determined 
using the most appropriate of the following 
procedures: 

(a) for specific chemical constituents or com- 
pounds, acceptable levels will be equiv- 
alent to a concentration of one-half or less 
of the Final Acute Value (FAV) as deter- 
mined according to "Guidelines for De- 
riving Numerical Water Quality Criteria 
for the Protection of Aquatic Life and its 
Uses" published by the Environmental 
Protection Agency and referenced in the 
Federal Reas^ter (50 FR 30784, Julv 29, 
1985). 

(b) for specific chemical constituents or com- 
pounds, acceptable levels will be equiv- 
alent to a concentration of one-third or 
less of the lowest available LC50 value. 

(c) for effluents, acceptable levels are defmed 
as no statistically measurable lethality (99 
percent confidence level using Students t 
test) during a specified exposure period. 
Concentrations of exposure will be deter- 
mined on a case-by-case basis. 

(d) in instances where detailed dose response 
data indicate that acceptable levels are 
significantly different from those defined 
in this Rule, the Director may determine 
on a case-bv-case basis an alternate ac- 



2-S 



6:6 SORTH CAROLINA REGISTER June 14, 1 991 



PROPOSED RULES 



ceptable level through statistical analyses 
of the dose response curve. 

(2) Acute to Chronic Ratio (ACR) means the 
ratio of acute toxicity expressed as an LC50 
for a specific toxicant or an effluent to the 
chronic value for the same toxicant or 
effluent. 

(3) Agricultural uses include the use of waters 
for stock watering, irrigation, and other farm 
purposes. 

(4) Approved treatment, as applied to water 
supplies, means treatment accepted as satis- 
factory by the authorities responsible for 
exercising supervision over the quality of 
water suppHes. 

(5) Average (except bacterial) means arithme- 
tical average and includes the analytical re- 
sults of all samples taken during the specified 
period; all sampling shall be done as to ob- 
tain the most representative sample under 
prevailing conditions: 

(a) Daily Average for dissolved oxygen, shall 
be of at least four samples; 

(b) Weekly Average means the average of all 
daily composite samples obtained during 
the calendar week; if only one grab sample 
is taken each day, the weekly average is 
the average of all daily grab samples; a 
minimum of three daily grab samples is 
needed to calculate a weekly average; 

(c) Monthly Average means the average of all 
daily composites (or grab samples if only 
one per day) obtained during the calendar 
month. 

The definitions in this Paragraph do not 
affect the monitoring requirements for 
NPDES permits but rather arc to be used 
by the Division along with other method- 
ologies in determining violations of water 
quality standards. Arithmetical averages 
as defined by this Rule, and not confi- 
dence limits nor other statistical de- 
scriptions, will be used in all calculations 
of limitations which require the use of 
averages pursuant to this Rule and 40 
CFR''l22.41(l)(4)(iii). 

(6) Best Management Practice (B.MP) means 
a structural or nonstructural management- 
based practice used singularly or in combi- 
nation to reduce nonpoint source inputs to 
receiving waters in order to achieve water 
quality protection goals. 

(7) Best usage of waters as specified for each 
class means those uses as determined by the 
Environmental Management Commission in 
accordance with the provisions of Article 21, 
Chapter 143-214.1, General Statutes of 
North Carolina. 



(8) Bioaccumulative means substances which 
are taken up, concentrated, and retained by 
an organism from its environment. 

(9) Buffer means a natural or vegetated area 
through which stormwater runoff flows in a 
diffuse manner so that the runoff does not 
become channelized and which provides for 
infiltration q£ the runoff and filtering q£ 
pollutants. The buffer is measured landward 
from the normal pool elevation of impounded 
structures and from the bank of each side q£ 
streams or rivers. 

(10) Built- upon area means that portion q£ a 
development project that i_s_ covered by 
impervious or partially impervious cover in- 
cluding buildings, pavement, gravel roads, 
recreation facilities (e.g. tennis courts), etc. 
(Note: Wooden slatted decks and the water 
area of a swimming pool are considered per- 
vious.) 

(in f^ Chronic toxicity to aquatic life means 
any harmful effect sustained by either resi- 
dent aquatic populations or indicator species 
used as test organisms in a controlled 
toxicity test due to long-term exposure (rel- 
ative to the Ufe cycle of the organism) or 
exposure during a substantial portion of the 
duration of a sensitive period of the life cycle 
to a specific chemical substance or mixture 
of chemicals (as in an effluent). In absence 
of extended periods of exposure, early life 
stage or reproductive toxicity tests may be 
used to define chronic impacts. 

(12) ( /(if Chronic value for aquatic life means 
the geometric mean of two concentrations 
identified in a controlled toxicity test as the 
No Observable Effect Concentration 
(NOEC) and the Lowest Observable Effect 
Concentration (LOEC). 

( /3) (11) Concentrations are the mass of a 
substance per volume of water and for the 
purposes of this Section will be expressed as 
milligrams per liter (mg/1), micrograms per 
liter (ug/1), or nanograms per liter (ng/1). 

( [4) Critical area means the area adjacent to 
a water supply intake or reservoir where risk 
associated with pollution /£ greater than from 
the remaining portions of the watershed. 1 he 
critical area /£ defined as extending either 
one mile from the normal pool elevation o[ 
the resen'oir ijn which the intake ij_ located or 
t_o tjve ridge line of the watershed (whichever 
comes first): qr_ one mile upstream from and 
draining t_£ tjie intake (or other appropriate 
downstream location associated with the wa- 
ter supply ) located directly in the stream or 
river ( run- of- ihe-river ) , or t_o the ridge line 
of the watershed (whichever comes first). 



6:6 NORTH CAROLINA REGISTER June 14, 1 99 1 



279 



PROPOSED RULES 



Since WS-l watersheds are uninhabited €tftd 
undeveloped, establishment of a critical area 
is nol required. Local governments may ex- 
tend the critical area as needed. Major 
landmarks such as_ hii^hways or property lines 
may be used ro delineate the outer boundary 
o£ lhe_ critical area i£ these landmarks are 
immediately adjacent t_o tjie_ appropriate outer 
boundary of one mile. 

(15) i 12 > Cntical habitat areas are defined for 
the purposes of the rules of this Section as 
those waters which are considered to be es- 
sential for the continued existence of an en- 
dangered or threatened species, and which 
are so designated by the NC Wildlife Re- 
sources Commission for animals or the NC 
Department of Agriculture for plants. 

( 16] \ 13 ' Designated Nonpoint Source Agency 
means those agencies specified by the Gov- 
ernor in the North Carohna Nonpoint 
Source Management Program, as approved 
by the Environmental Protection Agency. 

( 17 ) De\elopment means any land disturbin;^ 
activity which adds io_ or changes the amount 
o[ impervious or partially impervious cover 
on a land area or which othcnyjse decreases 
the infiltration of precipitation into the soil. 

( IS ) \ 1 1 ^ Discharge is the addition of any 
man-induced waste effluent either directly 
or indirectly to state surface waters. 

( 19 1 I 15 ' Division means the Division of En- 
vironmental Management or its successors. 

(20/ Domestic wastewater dischar2.e means the 
discharge ot_ sc^wige. non-process industrial 
wastewater, other domestic wastewater or 
any combination o[ these items. L nless ex- 
cepted by the Director, domestic wastewater 
includes liquid waste generated by domestic 
water using jixtures and appliances, from any 
residence, place of business, or place of public 
assembly e\'en if U contains no sctea^e. E.x- 
amples of domestic wastewater include once- 
throu'jh non-contact cooling water, seaj'ood 
packing facility discharges and wastewater 
from restaurants. 

(21 1 I i< > > Etfluent channel means a discemable 
confmed and discrete conveyance which is 
used for transporting treated wastewater to 
a receiving stream or other body of water as 
pro\"ided in Rule .0215 of this Section. 

(22 J i7" < E-xisting uses mean uses actually at- 
tained in the water body, in a significant and 
not incidental manner, on or after Novem- 
ber 28, 1975. whether or not they are in- 
cluded in the water quahty standards, which 
either have been actually available to the 
pubhc or are uses deemed attainable by the 
Environmental Management Commission. 



At a minimum, uses shall be deemed attain- 
able if they can be achieved by the imposi- 
tion of effluent limits and cost-effective and 
reasonable best management practices 
(B.MPsj for nonpoint source control. 
( 23 ) (IS) Fishing means the taking of fish by 
sport or commercial methods as weU as the 
consumption of fish or shellfish or the 
propagation of fish and such other aquatic 
life as is necessary to provide a suitable en- 
vironment for fish. 
i 24 1 { 19 > Ereshwater means all waters that 
under natural conditions would have a 
chloride ion content of 500 mgl or less. 
(25 1 Hazardous material means any substance 
listed as_ such in: S.-\ R.4 Section 302 Ex- 
tremely Hazardous Substances. CERCL.A 
Hazardous Substances, or Section 311 of 
C\V.-l (oil and hazardom substances i . 
(26 I Industrial discharge means the discharge 
of industrial process treated wastewater or 
wastewater other than sewage and includes: 
(a I wastewater resulting from any process of 
industry; or manufacture, or from the de- 
velopment of any natural resource: 
(b I wastewater resulting from processes of 
trade or business, including wastewater 
from laundromats and car washes, but not 
wastnyater from restaurants: 
(c i stornnvater will not be considered to be an 
industrial wastewater unless u is_ contam- 
inated with industrial wastriyater: or 
(d ! wastc\yater discharged from a municipal 
wastewater treatment plant requiring a 
pretreatment program. 
(2'^j { 20' LC50 means that concentration of a 
toxic substance which is lethal (or 
immobilizing, if appropriate) to 50 percent 
of the organisms tested during a specified 
exposure period. The LC50 concentration 
for toxic materials shall be determined for 
appropriate sensitive species under aquatic 
conditions characteristic of the receiving 
waters. 
( 2S .1 Local government means a city or county 
i_n singular or plural a£ defined i_n G.S. 
J60A-E2I and G.S. 15SA-/0. 
(29 / I 2/ } Lower piedmont and coastal plain 
waters mean those waters of the Catawba 
River Basin below Lookout Shoals Dam: 
the '^'adkin Ri\er Basm below the junction 
of the Fors>th, Yadkin, and Davie County 
lines and all of the waters of Cape Eear: 
Lumber; Roanoke; Neusc; Tar-Pamlico; 
Chowan; Pasquotank; and \\'hite Oak River 
Basins, except tidal salt waters which are 
assigned S classifications. 



2,S0 



6:6 i\ORTH CAROLINA REGISTER June 14, 1991 



PROPOSED RULES 



(30) (22) MF is an abbreviation for the mem- 
brane filter procedure for bacteriological 
analysis. 

(31 ) (23 ) Mixing zone means a region of the 
receiving water in the vicinity of a discharge 
within which dispersion and dilution of 
constituents in the discharge occurs and such 
zones shall be subject to conditions estab- 
lished in accordance with 15A NCAC 2B 
.0204(b). 

(32) (2'}) Mountain and upper piedmont wa- 
ters mean all of the waters of the Hiwassee; 
Little Tennessee, including the Savannah 
River drainage area; French Broad; Broad; 
New; and Watauga River Basins and those 
portions of the Catawba River Basin above 
Lookout Shoals Dam and the Yadkin River 
Basin above the junction of the Fors>1h, 
\'adkin, and Davie County lines. 

(33) (25 ) Nonpoint source pollution means 
pollution which enters waters mainly as a 
result of precipitation and subsequent nmoff 
from lands which have been disturbed by 
man's activities and includes all sources of 
water pollution which are not required to 
have a permit in accordance with G.S. 
143-215. 1(c). 

(34) Non-process discharge means industrial 
ef fluent not directly resulting from the manu- 
facturing, process. An example would be 
non-contact cooling water from a compressor. 

(35 J (26) Nutrient sensitive waters mean those 
waters which are so designated in the classi- 
fication schedule in order to limit the dis- 
charge of nutrients (usually nitrogen and 
phosphorus). They are designated by 
"NSW" following the water classification. 

(36) (27 ) Offensive condition means any con- 
dition or conditions resulting from the pres- 
ence of sewage, industrial wastes or other 
wastes within the waters of the state or along 
the shorelines thereof which shall either di- 
rectly or indirectly cause foul or noxious 
odors, unsightly conditions, or breeding of 
abnormally large quantities of mosquitoes 
or other insect pests, or shall damage private 
or public water supplies or other structures, 
result in the development of gases which 
destroy or damage surrounding property, 
herbage or grasses, or which may cause the 
impairment of taste, such as from fish flesh 
tainting, or affect the health of any person 
residing or working in the area. 

(37) (2S) Primary Nursery .Veas (PNAs) are 
tidal saltwaters which provide essential 
habitat for the early development of com- 
mercially important fish and shellllsh and are 



so designated by the Marine Fisheries 
Commission. 

(38) (29) Primary recreation includes swim- 
ming, skin diving, skiing, and similar uses 
involving human body contact with water 
where such activities take place in an organ- 
ized or on a frequent basis. 

(39) Protected area means the area adjoining 
and upstream of the critical area in a WS-IV 
water supply watershed iji which protection 
measures are required. The boundaries o£ 
the protected areas are defined as extending 
fn-e miles upstream and draining £o water 
supply reservoirs (measured from the normal 
pool elevation) or t_o the ridge line of the 
watershed (whichever comes first I; or 10 
miles upstream and draining t_£ tjw intake 
located directly in tjie stream or river ( nin- 
of-the-river), or 



to the ridge line 
watershed (whichever comes first}. 



o£ the 
Local 



governments may extend the protected area. 
Major landmarks such as highways or prop- 
erty lines may be used t_o_ delineate the outer 
boundary of the protected area i_f these land- 
marks are immediately adjacent t_o tjie ap- 
propriate outer boundary of five or /O miles. 
In some cases the protected area will encom- 
pass the entire watershed. 

(40 ) Residential development means buildings 
for residence such as attached and detached 
single family dwellings, apartment complexes, 
condominiums, townhouses, cottages, etc. and 
their associated outbuildings such as garages, 
storage buildings, gazebos, etc. 

(41 ) (30) Secondary recreation includes wad- 
ing, boating, other uses not involving human 
body contact with water, and activities in- 
volving human body contact with water 
where such activities take place on an infre- 
quent, unorganized, or incidental basis. 

(42) (31 ) Sensitive species for aquatic toxicity 
testing is any species utilized in procedures 
accepted by the Commission or its designee 
in accordance with Rules .021 l(b)(3)(L) or 
.0212(b)(3) iir) [W_ of this Section, or the 
following genera: 

(a) Daphnia; 

(b) Ceriodaphnia; 

(c) Salmo; 

(d) Pimephales; 

(e) Mysidopsis; 

(f) Champia; 

(g) Cyprinodon; 
(h) Arbacia; 

(i) Penaeus; 
(j) Menidia; 
(k) Notropis; 
(1) Salvelinus; 



6:6 NORTH CAROLINA REGISTER June 14, 1991 



2S1 



PROPOSED RULES 



(m) Oncorhynchus; 

(n) Selcnastrum. 
Other genera may be accepted by the Com- 
mission or its designee on a case-by-case ba- 
sis. 

(43) (31) Shellfish culture includes the use of 
waters for the propagation, storage and 
gathering of oysters, clams, and other 
shellfish for market purposes. 

(44) Sludge' residuals means any solid or semi- 
solid waste generated from a wastewater 
treatment plant, water treatment plant ^r air 
pollution control facility permitted under the 
authority o[ the Environmental Management 
Commission. 

(45 1 i 33} Source of water supply for drinking, 
cuUnary or food-processing purposes means 
any source, either public or private, the wa- 
ters from which are used for human con- 
sumption, or used in connection with the 
processing of milk, be\'erages, food, or other 
purpose which requires water meeting the 
.Maximum Contaminant Levels (MCLs) in 
the North Carolina Rules Governing Pubhc 
Water Supplies, m SCAC 44m OSm ISA 
\CAC 18C .1500 as weU as MCLs 
promulgated by the Environmental Pro- 
tection Agency pursuant to the Public 
Heahh Semce'Act, 42 U.S.C. 201 et seq., 
as amended by the Safe Drinking Water Act, 
42 U.S.C. 300(f) (g)-l et seq. 

(46) (34) Swamp waters mean those waters 
which are classified by the Environmental 
\Linagemcnt Commission and which are 
topographically located so as to generaUy 
have \'ery low \elocities and certain other 
characteristics which are different from ad- 
jacent streams draining steeper topography. 
They are designated by "Sw" following the 
water classification. 

(47 ) (35 } Tidal salt waters mean all tidal waters 
which are classified by the Environmental 
Management Commission which generally 
have a natural chloride ion content in excess 
of 500 parts per million and include all wa- 
ters assigned S classifications. 

(48) ( 36) Foxic substance or toxicant means 
any substance or combination of substances 
(including disease-causing agents), which af- 
ter discharge and upon exposure, ingestion, 
inhalation, or assimilation into any 
organism, cither directly from the en\iron- 
ment or indirectly by ingestion through food 
chains, has the potential to cause death, dis- 
ease, beha\ioral abnormalities, cancer, ge- 
netic mutations, physiological malfunctions 
(including malfunctions or suppression in 
reproduction or growth) or physical 



deformities in such organisms or their off- 
spring or other adverse health effects. 

(49) (3'7) Trout waters are those waters which 
have conditions which will sustain and allow 
for trout propagation and survival of stocked 
trout on a year-round basis. These waters 
are classified by the Commission after con- 
sidering the requirements of Rule .0101(b) 
and (c) of this Subchapter and include all 
waters designated by "Tr" in the water clas- 
sification. 

(50) (38) Waste disposal includes the use of 
waters for disposal of sewage, industrial 
waste or other waste after approved treat- 
ment. 

(51 ) (39) Water quality based effluent limits 
and best management practices are limita- 
tions or best management practices devel- 
oped by the Division for the purpose of 
protecting water quality standards and best 
usage of surface waters consistent with the 
requirements of General Statute 143-214.1 
and the Federal Water Pollution Control 
Act as amended. 

(52) fW-)- Waters with quality higher than the 
standards means all waters for which the 
determination of waste load allocations 
(pursuant to Rule .0206 of this Section) in- 
dicates that water quality is sufficiently 
greater than that defined by the standards 
such that significant pollutant loading ca- 
pacity stiU exists in those waters. 

(53) Watershed means the entire land area 
contributing surface drainage t_o a specific 
point. 



Statutory A uthority 

l43-2l5.3(a)(l). 



G.S. 



143-214.1; 



.021 1 FRESH SURFACE W.ATER 

CL.^SSIFICATIONS AND STANDARDS 

(c) Class WS-I Waters. 

(1) Best Usage of Waters. Source of water 
supply for drinking, culinary, or food- 
processing purposes for those users desir- 
ing maximum protection of their water 
supphes, and any other best usage speci- 
fied for Class C waters; 

(2) Conditions Related to the Best Usage. 
Waters of this class are protected water 
supplies within natural and un i nliuh i tiitod 
undeveloped t^ predominanily andovcU^ped 
j-HtH uibaninod) watersheds with no per- 
mitted point source discharges (except 
those specified in Rule .OHM of this Sub- 
chapter); except those e.\isii fi g disclh t rgos 
tfiMliJying fi*f rf General Permit according 
to the rotfuiromofils ef 4-5-A- XCi i G 044- 



282 



6:6 NORTH CAROLINA REGISTER June 14, 1991 



PROPOSED RULES 



.0/3/ spccifica/ly approved bf tke Com 
mission at the time ef c/assifiaUion; waters 
within this class must be relatively unim- 
pacted by nonpoint sources of pollution; 
/oca/ land use management programs are 
required to protect waters from nonpoint 
source pollution; si/vicu/turc tntd agrioul 
{arc activities a*=e allowed tutd mv required 
f6> employ Best Management Practices 
(BMPs) f«# defined by Rule .OJOJ/6) «f 
tkh Section/ recommended by the Dcsig 

wm t^ -t ft ri '\j i-\ *^ *\ i^ t w\ ^ X j-k J J a* yi ji .1 j>- jt ji ji ■ 1 I y-m r yi yi / j ** yi ji 

hy fkde .0303(15) ef this Section/ except 

lM.Ltl\. ICI I U F IIT tr. F I J y \Kr I t LUI-Vlf l^U \f I **J- TTT TTTT 

extent State e»st share funds and technical 
assistance aee available; silviculture activ 
(ties must occur pursuant to -ISA iXCAC 
44 .0101 - .0209; walersbods must be pt'^s- 
Icciod <t»d the waters, following treatment 
required by the Division of //oa/lb T»?t^ 
vices. Environmental h/eallh, will meet the 
Maximum Contaminant levels I^evel con- 
centrations considered safe for drinking, 
culinary, and food-processing purposes 
which are specified in the national drink- 
ing water regulations and in the North 
Carolina Rules Governing Public Water 
SuppUes, 44 ,\'C.iG 4m OSm- /5A 
\C.4C 18C ./500: sources of water pol- 
lution which preclude any of these uses 
on either a short-term or long-term basis 
will be considered to be violating a water 
quality standard; The Class WS-l classi- 
fication may be_ used t_£ protect portions 
I e.,^. tributaries or headwaters 1 of Class 
WS-l/. WS-l 1 1 and U5-/I' water sur 



plies. For reclassifications occurring after 
the ./anuan' /_j_ 1992 statewide reclassifica- 
tion, the higher classification will not he 
considered by the Commission unless all 
local governments havintj jurisdiction iji the 
affected areal s ) ha\-e adopted a resolution 
and effective appropriate ordinances [o 
protect the watershed or tjw Commission 
acts t£ protect a watershed when one or 
more local governments has failed t_o adopt 
necessary protection measures. 
(3) Quality Standards Applicable to Class 
WS-I Waters: 

(A) Nonpoint Source Pollution: whff t/trtt 
pol/udoH which wUl »t*t none that would 
ad\crsely impact the waters for use as a 
water supply or any other designated use; 

(B) Organisms of coliform group: total 
coliforms not to exceed 50/100 ml (MF 
count) as a monthly geometric mean 
value in watersheds serving as untiltered 
water supplies; 



(C) Phenolic compounds: not greater than 
1.0 ug/1 (phenols) to protect water sup- 
plies from taste and odor problems from 
chlorinated phenols; 

(D) Sewage, industrial wastes: none, except 
those specified in either Subparagraph (2) 
of this Paragraph, or Ride .0/04 of this 
Subc/iapter; 

(E) Solids, total dissolved: not greater than 
500 mg/1; 

(F) Total hardness: not greater than 100 
mg/1 as calcium carbonate; 

(G) Toxic and other deleterious substances: 
(i) Water quality standards (maximum 

permissible Icvc/s) concentrations ) to 
protect human health through water 
consumption and fish tissue consump- 
tion for non-carcinogens in Class WS-I 
waters: 

(I) Barium: 1.0 mg/1; 

(II) Chlonde: 250 mgl; 

(III) .Manganese: ^ 200 ug/1; 

(IV) Nickel: 25ug,l; 

(V) Nitrate nitrogen: 10.0 mg/1; 

(VI) 2,4-D: 100 U2,i; 

(VII) 2,4,5-TP (Silvex): 10 ug/1; 

(VIII) Sulfates: 250 mg/1; 

(ii) Water quality standards (maximum 
permissible levels) concentrations ) to 
protect human health through water 
consumption and fish tissue consump- 
tion for carcinogens in Class WS-I wa- 
ters: 

(I) BerjUium: 6.8 ng/I; 

(II) Benzene: 1.19 ug/1; 

(III) Carbon tetrachloride: 0.254 ug/1; 

(IV) Chlorinated benzenes: 488 ug/1; 

(V) Dioxm: 0.000013 ngl; 

(VI) Ilexachlorobutadiene: 0.445 ug/l; 

(VII) Polynuclear aromatic hydro- 
carbons: 2.8 ng/1; 

(VIII) Tctrachloroethane (1,1,2,2): 
0.172 ug/i; 

(IX) Tetrachloroeth\lenc: 0.8 ug/1; 

(X) Trichloroethylene: 3.08 ug/1; 

(XI) Vinvl Chloride: 2 ug/1; 

(XII) .Aldnn: 0.127 ng/l; 

(XIII) Chlordane: 0.5^75 ng/1; 

(XIV) DDT: 0.588 ng/1; 

(XV) Dieldnn: 0.135 ng/1; 

(XVI) Heptachlor: 0.208 ng/1. 
(d) Class WS-II Waters. 

(1) Best Usage of Waters. Source of water 
supply for drinking, culinary, or food- 
processing purposes for those users desir- 
ing maximum protection for their water 
supplies where a WS-I classification is not 
tilttiinablo feasible and any other best us- 



6:6 m)RTH CAROLINA REGISTER June 14, 1991 



283 



PROPOSED RULES 



age specified for Class C waters; Um das 
siOcaiifw Hhif tiUe ke itsod to protect 
critical portions 6*/" ihe watershed of Giass 
]l-S III waters; 
(2) Conditions Related to Best Usage. Waters 
of this class are protected as water supplies 
v\'hich are 'generally in low to inoderately 
developed ( urbanized } watersheds; ordf 
domestic wastewater discharges (exclud 
ing municipal dischargers re < !fuired to heive 
a pretrealment program according to I5A 
\CAC iU J)9(in ami indwitrial »oh- 
process discharges predominantly undevcl 
oped with fn^ permitted point source 
discharges h^' wastewater except those dh- 
charges existing at the time of rcelassi 
jieation which qualify for' <* General Permit 
pursuant to the requirements of ISA 
AC I C iff .0127 ■ipLH 'i ficiu l ly npprovod by 
tW I'.MC ar^e per fni tied In these 
watersheds; Commission; new discharges 
qualifying; fof a General Permit pursuant 
(^ 44^ \CAC iff dnU (Swimming A»W 
filter Backwash facilities > «*¥> allowed; 
l oon l «;o^ornnu'nts must have land use 
management programs to protect these 
watersheds from pollution due to land de- 
velopment ami other nonpoint sources; will 
encourage participation In the i tgricultural 
Cost Share Program trml will he aware of 
and, as the existing laws allow, develop, 
implement, and enforce a comprehensive 
nonpoint source control program to reduce 
water pollution from activities within the 
watcr -^ hcd such as commercial and rest 
dcntial development, forest t y, landJUls, 
mining, on site sanlta t y sewage systems 
M'hich utilize ground adsorption, toxic and 
hazardous materials, transportation, and 
water based recreation; predominantly 
undeveloped walerslietis: discharges e\ist- 
int; at the time of reclassification which 
CHI a 11 fy for a (>eneral Permit pursuant to 
I5A N( A( 2H .0127 arc allowed in the 
entire watershed: new swimming pool filter 
hackwash facilities and stormwater dis- 



charges arc allowed 



the entire 



>> atershed; new domestic and industrial 
discharges of treated wastewater are not 
allowed in the entire watershed; the wa- 



ters, following treatment required by the 
Division of Health Sen- ices. Enxiron- 
mcntal Health, will meet the Maximum 
Contaminant levels I.cx'el concentrations 
considered safe for dnnking, culinary, and 
food-processing purposes which are spec- 
ified in the national drinking water regu- 
lations and in the North Carolina Rules 



Governing Public Water Supplies, -M 
\CAC -im rfSOQf ISA .\CAC ISC .1500; 
sources of water pollution which preclude 
any of these uses on either a short-term 
or long-term basis will be considered to 
be violating a water quality standard; The 
Class WS-H classification may be used £o 
protect portions (e.g. tributaries or 
headwaters) of Class WS-HI and U'S-IV 
water supplies. For reclassifications oc- 
curring after the .January f 1992 statewide 
reclassification, the higher classification 
M'ill not be considered by the Commission 
unless all local governments having juris- 
diction in th£ affected areal s ) ha\-e 
adopted a resolution and effective appro- 
priate ordinances t_o protect the watershed 
or the Commission . acts t_o_ protect a 
watershed when one or more local govern- 
ments has failed to adopt necessary pro- 
tection measures. 
(3) Quality Standards Applicable to Class 
WS-II Waters: 

(A) Sewage and Industrial Wastes: none 
except fof" non process industrial dls- 
charges specifically approved by the Com 
mission; those specified i_n either 
Subparagraph (2) of this Paragraph. (2r 
Rule .0104 of this Subchapter; 

(B) Nonpoint Source and Stormwater Pol- 
lution: only that pollution which will not 
none that would adversely impact the wa- 
ters for use as a water supply or any other 
designated use; 

fi) Nonpoint Source and Stormwater 

Pollution Control Criteria For Entire 

Watershed: 

1 1 ) Development must be limited to one 
dwelling unit per two acres or si.x 
percent built- upon area on average i_n 
the watershed; stormwater controls 
may be used if local government de- 
sires additional protection for devel- 
opment, however, this shall not be 
used t£ supersede the density limit of 
one dwelling unit per two acres or six 
percent built-upon area; 

( H ) Land within the watershed will be 
deemed compliant with the density 
requirements ij_ tjic_ following t^vo con- 
ditions are met; I he density of all 
existing de\'elopment meets the den- 
sity requirement when densitic: are 
averaged throughout the entire 
watershed area at_ the_ time of classi- 
fication; .-ill new development meets 
this density requirement on a project 
by project basis; 



2S4 



6:6 NORTH CAROLINA REGISTER June 14, 1991 



PROPOSED RULES 



''III ) Clustering o[ develo£merU is al- 



lowed on a project basis with the fol- 
lowing conditions: Overall density of 
the project meets associated density 
or stormwater control requirements; 
Built- upon areas may only occur in 
upland areas of projects that are not 
immediately adjacent to water supply 
waters; Remainder of tract to remain 
in vegetated qr_ natural state; 

(IV ) A maximum of 10 percent of each 
jurisdiction's portion o£ the watershed 
outside of the critical area may be 
developed with new non-residential 
development projects of u£ to 7() per- 
cent built -upon surface area. Each 
project must t_o th£ maximum extent 
practicable minimize built -upon sur- 
face area, direct stormwater runojf 
away from surface waters and incor- 
porate best manas,ement practices t_o_ 
minimize water quality impacts; 

(V ) if local ^governments require engi- 
neered stormwater controls for addi- 
tional protection, then they will 
assume ultimate responsibility for op- 
eration and maintenance of the re- 
quired controls as outlined in Rule 
.01041 f I of this Subchapter; 

(I'l ) Minimum 100 foot ve2,etative 
buffer is required alon^ all perennial 
waters indicated as a solid blue line 
on L'.S.G.S. 1:24.000 ( 7.5 minute I 
scale topo'jraphic maps; the first 25 
feet, as_ a minimum, ij_ recommended 
W remain in a natural or undistrubed 
state: however, nothing 'in this Section 
shall stand as a bar t_o desirable arti- 
ficial streambank or shoreline 
stablilization: 



( VII I .\o new development ij_ allowed 
in t_he buffer; public projects such a£ 
road crossings and ^reenways may be 
allowed where no practicable alterna- 
tive exists; these activities should 
minimize built- upon surface area, di- 
rect runoff away from the surface wa- 
ters and maximize the utilization of 
B.MPs; 

(Mil) Maintain inventory of oH haz- 



ardous materials used and stored i_n 
the watershed: spill' failure contain- 
ment plan and appropriate safeguards 
against contamination are required: 
waste minimization and appropriate 
recycling of materials 'is_ encouraged: 
( I.Xj \o nnv discharging landfills are 
allowed: 



(ii) Critical Area Nonpoint Source and 
Stormwater Pollution Control Criteria: 

( I ) No new industrial development /£ 
allowed; 

(II) Ai* ttew engineered stormwater 
controls are allowed; 

(III} (II) jVo new permitted sites for 
land application of sludge/ residuals 
or petroleum contaminated soils are 
allowed: 

(IV) (III) No new, landfills are allowed; 

(C) Odor producing substances contained 
in sewage or other wastes: only such 
amounts, whether alone or in combina- 
tion with other substances or wastes, as 
wUl not cause: taste and odor difficulties 
in water supplies which cannot be cor- 
rected by treatment, impair the 
palatabihty of fish, or have a deleterious 
effect upon any best usage estabhshed for 
waters of this class; 

(D) Phenolic compounds: not greater than 
1.0 ug/l (phenols) to protect water sup- 
plies from taste and odor problems from 
due t_o chlorinated phenols; 

(E) Sewage: none which will have an ad- 
verse effect on human health or is not ef- 
fectively treated to the satisfaction of the 
Commission and in accordance with the 
requirements of the Division of Health 
Scn-icos, Environmental Health. North 
Carolina Department of Human -Ke- 
sowccs; Environment. Health, and Natural 
Resources: 



(F) Total hardness: not greater than 100 
mg, 1 as calcium carbonate; 

(G) Total dissolved solids: not greater than 
500 mg/1; 

(H) Toxic and other deleterious substances: 
(i) Water quality standards (maximum 
permissible lovo/s ) concentrations ) to 
protect human health through water 
consumption and fish tissue consump- 
tion for non-carcLnogens in Class WS-II 
waters: 

(I) Barium: 1.0 mg/1; 

(II) Chlonde: 250 mg 1; 

(III) Manganese: 200 ug/l; 

(IV) Nickel: 25 ug/l; 

(V) Nitrate nitrogen: 10.0 mg/1; 

(VI) 2,4-D: 100 ug/l; 

(VII) 2,4,5-TP: 10 ug 1; 

(VIII) Sulfates: iS^S 250 mg/1; 

(ii) Water quality standards (maximum 
permissible levels) concentrations ) to 
protect human health through water 
consumption and fish tissue consump- 



6:6 NORTH C.4R0LIN.A REGISTER June 14, 1 99 1 



2S5 



PROPOSED RULES 



tion for carcinogens in Class WS-II 
waters: 

(I) BerNllium; 6.8 ngl; 

(II) Benzene: 1.19 ug I; 

(III) Carbon tetrachloride: 0.254 ug,l; 

(IV) Chlorinated benzenes: 488 ugl; 

(V) Dio.xin: 0.000013 ng 1: 

(VI) Hexachlorobutadiene: 0.445 ug 1: 

(VII) Polynuclear aromatic hydro- 
carbons: 2.8 ng 1; 

(\'III) TetrachJoroethane (1,1,2.2): 
0.172 ugl: 

(IX) Tetrachloroethylene: 0.8 ug 1; 

(X) Trichloroethylene: 3.08 ug 1: 

(XI) Vinvl Chloride: 2 ugl; 
(Xllj .AJdrin: 0.127 nel;" 

(XIII) Chlordane: 0.575 nal; 

(XIV) DDT: 0.588 ngl; 

(XV) Dieldnn: 0.135 nal; 

(XVI) Heptachlor: 0.208 ng 1: 
(e) Class WS-II I Waters. 

(1) Best Usage of \\'ater5. Source of water 
supply for drinking, culinary, or food- 
processing purposes for those users where 
a more pfviociod sowccs <ft^ protective 
WS-I or li'S-I[ classirication is_ not feasi- 
ble and any other best usage specified for 
Class C waters: 

(2) Conditions Related to Best Usage. Wa 
tet^ nf fkii cldss «♦=*" pfotcctcd #* water 
supplies \ t <hieh »h€ generally m tmv ** 
moderately developed watersheds with a 
limited number nf domestie wastewater 
diseharges i exeluding munieipal disehargcs 
required d* have a pretrcatment program 
aeeording t» UA- \C. i C iU .090 h mtd 
industrial non process diseharges specif 
ically approved by the Commission: those 
discharges qualifying fi»= a General Permit 
pursuant f» fke requirements ef 15A 
.\C. t C iM .013'^ an? allowed otherwise ft» 
new diseharges in critical area: local gov 
crnments wiU encourage participation in 
the J igricultural Cost Share Program and 
will he aware of and. as the existing laws 
allow, develop, implement, and enforce a 
comprckcnsfvc nonpoint source control 
program f# reduce water pollution from 
activities within the watcr '> hcd such «# 
commercial and residential development, 
forestry, landfills, mining, onsite sanita t y 
sewage systems which utilize ground 
adsorption, toxic and hazardous materials, 
transportation, and water based re ere 
at ion: \\ atcrs of this class are protected 
as water supplies which are generally in 
low to mtxleratelv developed watersheds: 
discharges that qualify for a General Per- 



charges are allowed 
watershed: the waters, 



mit pursuant to 15A NCAC 2H .0127 and 
other stormwater discharges are allowed 
in the entire watershed; treated domestic 
wastewater discharges are allowed in the 
entire watershed but no new domestic 
wastewater discharges are allowed in the 
critical area; no industrial wastewater dis- 

|n thie entire 
after following 
treatment required by the Division of 
ticakk Scryiccs, Emironmenlal Health. 
wdJ meet the Ma>dmum Contaminant 
levels Level concentrations considered safe 
for dnnking, culinary, or food-processing 
purposes which are sf>ecitied in the na- 
tional drinking water regulations and in 
the North Carolina Rules Govemina 
Public Water Supplies. 4^ A'CIC 4m 
r44mf /5A \CA C ISC .1500: sources of 
water pollution which preclude any of 
these uses on either a short-term or long- 
term basis will be considered to be violat- 
ing a water quality standard; The Class 

7ro- 
iributaries or 



WS-I 11 classification may be used to 



tect portions 

headwaters' of Class WS-ll 



I e.g. 



water sn, 



plies. For reclassifications occurring after 
the Januar,' 1 . 1992 statewide reclassifica- 



tion, the higher classification will not be_ 
considered by the Commission unless all 
local governments ha\ing jurisdiction i_n the 
affected areai s ) ha\e adopted a resolution 
and effective appropriate ordinances t_o 
protect the waters/ied or tjie Commission 
acts t£ protect a waters/ted when one or 
more local governments has failed t_£ adopt 
necessari' protection measures. 
(3j Quality Standards Applicable to Class 
WS-IU'Waters: 

f.4 I Industrial Wastes: none except for 
those specified i_n either Subparagraph 1 2 1 
of this Paragraph or_ Rule .0104 of this 
Subchapter: 

(B ) Sonpoint Source and Stormwater Pol- 
lution: none that would adversely impact 
the waters for use as water supply or any 
other designated use: 

a I .\ onpoint Source and Stormwater 
Pollution Control Criteria For Entire 
Watershed: 



< 1 1 Development must be limited to one 
dwelling unit per acre or rtvelve per- 
cent built-upon on average in 
watershed outside of the critical area: 



(11 1 Land within the watershed will be_ 
deemed compliant with the density 
requirements if the following nco con- 



ditions are met: 



with _ 

ing rnY 
The density of oH 



'S6 



6:6 .\ORTH C.iROLIS.i REGISTER June 14, 1991 



PROPOSED RULES 



existing development meets the den- 
sity requirement when densities are 
ai'era^ed throui^hout the entire 
watershed area: All new development 
meets these density requirements on a 
project by project basis; 

(III ) Clustering o£ development ij_ al- 
lowed on a project basis as_ follows: 
Overall density of tjie project meets 
associated density or stor/nwater con- 
trol requirements: Bui ll -upon areas 
may only occur in upland area q£ 
project that is_ not_ immediately adja- 
cent t_o water supply waters: Remain- 
der of trad t_o remain in vegetated or 
natural state: 

(IV I If new development exceeds one 
dwelling unit per acre or rn-eh'e per- 
cent built-upon area then development 
must control runoff from the jirst inch 
of rainfall: development not [o exceed 
34) 50 percent built-upon area: 

(V) A maximwn of 10 percent of each 
jurisdiction' s portion o[ lh£ watershed 
outside o[ tjie_ critical area may be 
developed with new non-residential 
projects of u£ t_o 70 percent built-upon 
surface area. Each project must to the 
extent practicable minimize built-upon 
surface area, direct stormwater runoff 
away from surface waters and incor- 
porate best management practices t_o 
minimize water quality impacts: if the 
local government opts for high density 
development then appropriate engi- 
neered stormwater controls (wet de- 
tention basins ) must be_ employed for 
the new non-residential development 
which exceeds the low density re- 
quirements: 

( VI ) If local governments choose to_ 
allow development requiring engi- 
neered stormwater controls, then they 
will assume ultimate responsibility for 
operation and maintenance (jf ijic re- 
quired controls as outlined in Rule 
.0104(f) of this Subchapter: 

(VII I .Minimum 100 foot vegetative 



buffer /5 required along all perennial 
waters indicated as a .solid blue line 
on L.S.G.S. 1:24.000 (7.5 minute) 
scale topographic maps: the first 25 
feet, as a minimum, « recommended 
t£ remain ij7 a natural or undisturbed 
state: however, nothing iji this Section 
shall stand as_ a bar t_o_ desirable arti- 
ficial strcambank or shoreline stabili- 
zation: 



(VIII J \o new development is allowed 
in the buffer: public projects such a£ 
road crossings and greenways may be 
allowed where no practicable alterna- 
tive exists; these activities should 
minimize built-upon surface area, di- 
vert runoff away from surface waters 
and maximize the utilization of 
BMPs; 

( IX ) Maintain inventory of all hazard- 
ous materials used and stored in the 
watershed: spill failure containment 
plan and appropriate sajeguards 
against contamination are required: 



waste minimization and appropriate 

recycling of materials is_ encouraged; 
(.Y) So new discharging landfills are 

allowed; 
(ii) Critical Area Xonpoint Source and 
Stortinvater Pollution Control Criteria: 
( I j \o new industrial development i_s 

allowed; 

(II ) Sew development limited to one 
dwelling unit per two acres or six 
percent built-upon area: 

(III ) If new development exceeds one 
dwelling unit per two acres or si.x 
percent built-upon area then develop- 
ment must control runojf from the 
first one inch of rainfall: development 
not t_£ exceed 30 percent built-upon 
area: 

( l\ ' ) So new permitted sites for land 
application of sludge residuals or pe- 
trok'tim contaminalcil soils are al- 
lowed: 



( V } So new landfills are allowed: 

(C ) f-A->- Odor producing substances con- 
tained in sewage, non-process industrial 
wastes, or other wastes: only such 
amounts, whether alone or in combina- 
tion with other substances or wastes, as 
will not cause: taste and odor difficulties 
in water supplies which cannot be cor- 
rected by treatment, impair the 
palatability of fish, or have a deleterious 
effect upon any best usage established for 
waters of this class; 

(D) j-B4 Phenolic compounds: not greater 
than 1.0 ug/1 (phenols) to protect water 
supplies from taste and odor problems 
from due t_o chlorinated phenols; .'specific 
phenolic compounds may kt^ given d dilfor 
eM limit if it is domonslrated m^ to cau. ' ic 
(as to ^md odor problems aW »ei H* be 
detrimental to other ke^ usage; 

i-li4 -i-Qj- Sewage, non-process industrial 
wastes, or other wastes: none which will 



6:6 NORTH CAROLIN.i REGISTER .June 14. 1991 



2H7 



PROPOSED RULES 



have an adverse effect on human heaJth 
or which are not effccti\'ely treated to the 
satisfaction of the Commission and in ac- 
cordance with the requirements of the 
Division of Iloallh Son-icos, Environ- 
menlal Health. North Carohna Depart- 
ment of Uum t in Rcfou t 'ces; Em-ironmcnt. 



Health, and Natural Resources: any 
discharger <9p indusirial users subject i0 
protredtfnent standards may be required 
upon request by the Commission to dis- 
close all chemical constituents present or 
potentially present in their wastes and 
chemicals which could be spilled or be 
present in runoff from their facility which 
may have an adverse impact on down- 
stream water supplies classified WS-lII; 
these facilities may be required to have 
spill and treatment failure control plans 
as well as perform special monitoring for 
toxic substances; 
(F) f^-A Total hardness: not greater than 

100 mg 1 as calcium carbonate: 
(G j f-E-i- Total dissolved solids: not greater 

than 500 mg. 1; 
(Ht -f-P-)- Toxic and other deleterious sub- 
stances: 

(i) Water quality standards (maximum 
permissible leveis t concentrations I to 
protect human health through water 
consumption and fish tissue consump- 
tion for non-carcinoaens in Class 
WS-III waters: 

(I) Barium: 1.0 mg 1; 

(II) Chloride: 250 mg,l; 

(III) Manganese: 200 ug/l; 

(IV) Nickel: 25 ug,l; 

(V) Nitrate nitro2cn: 10.0 mg/1; 

(VI) 2,4-D: 100\i2 1: 

(VII) 2,4.5-TP (Silvex): 10 ug I: 

(VIII) Sulfates: ^:»A^ 250 mg 1; 

(ii) Water quality standards (maximum 
permissible levels t concentrations ) to 
protect human health through water 
consumption and tlsh tissue consump- 
tion for carcinogens in Class WS-III 
waters: 

(I) Beryllium: 6.8 ng 1; 

(II) Benzene: 1.19 ugl; 

(III) Carbon tetrachloride: 0.254 ug 1; 

(IV) Chlorinated benzenes: 488 ug 1; 

(V) Dioxin: 0.000013 ngl; 

(VI) Hexachlorobutadiene: 0.445 ug 1; 

(VII) Polynuclear aromatic hydro- 
carbons: 2.8 na 1; 



(VIII) 



Tetrachloroethane 



,2,2): 



0.172 ugl: 
(IX) Tetrachloroethylene: 0.8 ug 1; 



(X) Trichloroethylene; 3.08 ug/I; 

(XI) Vinvl Chloride: 2 ug/I; 

(XII) Aldrm: 0.127 ng/1; 

(XIII) Chlordane: 0.575 ng/I; 

(XIV) DDT: 0.588 ng/I; 

(XV) Dieldrin: 0.135 ng/I; 

(XVI) Heptachlor: 0.208 ng/1: 
(fl Class WS-IV Waters. 

( 1 ) Best Usa^e of ii'aters. Source o[ water 
supply for drinking, culinary, or food- 
processing purposes for those users where 
a more protectee WS-l. WS-H or WS-Ill 

' classification « not feasible and any other 
best usage specified for Class C waters: 

(2 ) Conditions Related fo Best Usage. JVa 
tem nf this class ««? protected «# water 
supplies w flick af=e generally in moderately 
*# highly developed watersheds <h= pro 
tcctcd areas with a limited number of do- 
mcstic wastewater discharges oftd 
industrial discharges specifically approved 
hf the Commission; those discharges qual 

11 ). 1 1 I C J 'J ' ** Vil-lll 1 m 1 L f f > II I. LfUt J\t\\lll f. \J Hl\. 

requirements o^'44A .\C.iC iff ■M4J af=e 
allowed otherwise «# sew industrial di^ 
charges at^ allowed in the critical area; 
local governments will encourage panic 
ipation i» the i tgiicultural Cost Share 
Program and will he aware of and. as the 
c.Kisting laws allow, develop, implement, 
- €tnd cnfi>rcc a comprehensive nonpoint 
source control program to reduce wafer 
pollution fiom activities within the 
watershed such as commercial and resi 
dcntial development, fi)restr}\ landfills, 
mining, on site sanitaty sewage systems 
which utilize ground adsorption, to\ie and 
hazardous materials, transportation, and 
water based recreation; Waters of this 
class are protected as water supplies which 
are generally m moderately to hij^hiv de- 
veloped watersheds or protected areas; 
discharges which qualify for a (ieneral 
Permit pursuant to 15.A NC.\C 2H .0127. 
other stormwater discharges and domestic 
wastewater discharges are allowed m the 
protected and critical areas; treated indus- 
trial wastewater discharges are allowed m 
the protected and critical areas but no new 
industrial wastewater discharge is allowed 
in the critical area except new industrial 
connections and expansions to existing 
municipal discharges with a pretreatment 
program pursuant to \5.\ NC'.AC 2H 
■0904 are allowed; the waters, following 
treatment required by the Division o[ hn- 
vironmental Health, will meet the .Maxi- 
mum Contaminant Level concentrations 



2<SS 



6:6 NORTH CAROLINA REGLSTER June 14, 1991 



PROPOSED RULES 



considered safe for drinking, culinary, or 
food-processing purposes which are speci- 
fied in the national drinking water regu- 
lations and in the North Carolina Rules 



Governing Public 
NCAC ISC .1500. 



Water Supplies, ISA 
sources of water pol- 
lution which preclude any of these uses on 
either a short-term or long-term basis will 
be considered to he violating a water (qual- 
ity standard: 
(3) Quality Standards Applicable t_£ Class 
WS-IV Waters: 

(A) Industrial Wastes: no new discharges 
allowed within the critical area: 

( B) Nonpoint Source and Stormwater Pol- 
lution: none that would adversely impact 
the waters for use as water supply or any 
other designated use: 

(i) Nonpoint Source and Stormwater 
Pollution Control Criteria For Entire 
Watershed Or Protected Area: 



(I ) Development must be limited to two 
dwelling units per acre or 24_ percent 
built-upon area on average in tji£ pro- 
tected area outside (jf critical area: 

(II ) Land within the critical and pro- 
tected area will be deemed compliant 
with the density requirements if the 
following two conditions are met: 
The density of all '^xi'^^ing develop- 
ment meets the density requirement 
when densities are axeraged through- 
out the entire area: All new develop- 
ment meets these density requirements 
on a project by project basis: 

(III) Clustering of de\-elopment « af 



lowed on a project by project basis 
with the following conditions: Ch'erall 
density of the project meets associated 
density or stormwater control re- 
quirements: Built- upon areas may 
only occur m upland area of project 
that i_£ nol immediately adjacent to 
water supply waters: Remainder of 
tract to remain ijn vegetated or natural 
state: 

( IV ) If new development exceeds two 
dwelling units per acre qr_ 24_ percent 
built-upon area then development 
must control the runojf from the first 
inch of rainfall: new development not 
to exceed 70 percent huilt-upon area: 

(V) If local governments choose t_o al- 
low de\-elopment requiring engineered 
stormwater controls, then they will 
assume ultimate responsibility for op- 
eration and maintenance of the re- 



quired controls as outlined in Rule 
.0104(f) of this Subchapter: 
(VI ) Minimum 100 foot vegetative 
buffer i_s required along all perennial 
waters indicated as a solid blue line 
on L.S.G.S. 1:24,000 £7 J minute) 
scale topographic maps; the first 25 
feet, oj a minimum. /5 recommended 
to remain i_n a natural or undisturbed 
state: however, nothing m this Section 
shall stand as a bar t£ desirable arti- 
ficial streambank or shoreline pro- 



tection: 

(VII ) No new development « allowed 
in the buffer: public projects such as 
road crossings and greenways may be 
allowed where no practicable alterna- 
tive exists: these activities should 
minimize built-upon .nirface area, di- 
vert runoff away from .surface waters 
and maximize the utilization of 
BMPs; 

{ VIII ) \ faintain im-entory of all ^''^^' 
ardous materials used and stored in 
the critical and protected areas: 



spill failure containment plan and ap- 
propriate safeguards against contam- 
ination are required: waste 
minimization and appropriate recycl- 
ing of materials is_ encouraged: 
(ii) Critical Area Nonpoint Source and 
Stormwater Pollution Control Criteria: 
1 1 ) New development limited t_o one 
dwelling unit per acre or 12_ percent 
built-upon area: 

(II) If new development exceeds one 
dwelling unit per acre or 12 percent 
built-upon then development must 
control runoff from the first inch of 
rainfall: new development not t_o_ ex- 
ceed 30 percent built-upon area; 

(III ) No new permitted sites for land 
application of sludge residuals or pe- 
troleiim contaminated soils are al- 
lowed; 

(IV ) No new landfills are allowed: 
(C) Odor producing substances contained 

in sewage, industrial wastes, or other 
wastes: only such amounts, whether alone 
or in combination with other substances or 
waste, as_ will not cause taste and odor 
difficulties in_ water .supplies which cannot 
be corrected by treatment, impair the 
palatability of fi''h. or ha\e a deleterious 
et 



established for 



effect upon any best usage 
waters of this class; 
( D) Phenolic compounds: not greater than 



l.O ug ' I I phenols) t_o protect water supplies 



6:6 NORTH CAROLINA REGISTER June 14, 1991 



2S9 



PROPOSED RULES 



from taste and odor problems due l_o 
chlorinated phenols; specific phenolic com- 
pounds may be given a different limit if i_l 
/£ demonstrated not t_£ cause taste and 
odor problems and not t_£ be_ detrimental 
to other best usage; 

( E) Sewage, industrial wastes, qr_ other 
wastes: none which will have an adverse 
effect on human health or which are not 
effecti\'ely treated to_ tjic_ satisfaction of the 
Commission and iji accordance with the 
requirements q£ tlw Division q£ h'nviron- 
mental Health. Xorih Carolina Depart- 
ment ()£ Environment. Health, and Natural 
Resources: any discharges cjr industrial 
users subject t_o prctreatment standards 
must upon request by the Commission, 
disclose all chemical constituents present 
or potentially present in their wastes and 
chemicals which could be spilled or be 
present m runoff from their facility which 
may have an adverse impact on down- 
stream water supplies classified WS-IV; 
these facilities may be required [o lujve spill 
and treatment failure control plans oj well 
as perform special monitoring for toxic 
substances: 

(El Eotal hardness: not greater than 100 



mgl as calcium carbonate: 
I'G I Total dissolved solids: not greater than 

500 mgl; 
I H ) Toxic and other deleterious substances: 
I i I Water quality standards I maximum 
permissible concentrations J t_o protect 
human health through water consump- 
tion and fish tissue consumption for 
non-carcinogens in Class US- 1 1' waters: 
1 1 1 Barium: 1 .0 mgl; 
I'll I Chloride: 250 mg I; 

(III ) Manganese: 200 ug:l; 

(IV) Mckel: 25 ug I: 

( V ) Nitrate nitrogen: 10.0 mgil; 



(VI) 2.4- D: 100 ugU; 

(VII) 2.4.5-TP iSih-ex): 10 ugl: 

(VIII) Sulfates: 250 mgl; 

(ii ) Water quality standards I mcLximum 
permissible concentrations l t£ protect 
human health through water consump- 
tion and fish tissue consumption for 
carcinogens iji Class WS-I\ " waters: 

( I ) Beryllium: 6..S' ng I; 

(II) Benzene: 1.19 ugl: 

(III) Carbon tetrachloride: 0.254 wz' I: 



( IV ) Chlorinated benzenes: 4SS ug I: 



(VII ) Polynuclear aromatic hydro- 
carbons: 2.8 ngil; 

(VIII) Tetrachloroethane (1,1.2,2): 
0.172 ugl I; 

(IX) Tetrachloroethylene: O.S ugjl; 

(X) Trichloroethylene: 3.08 ugjl; 

(XI) Vinyl Chloride: 2 ugJ; 

(XII) Aldrin: 0.127 ngl I; 
(XI ID Chlordane: 0.575 ngjl; 

(XIV) DDT: 0.588 ngil; 

(XV) Dieldrin: 0.135 ngjl; 

(XVI) Heptachlor: 0.208 ngjl; 
(g) f-f^ Class B Waters. 

Statutory Authority G.S. 1 43-2 14. 1; 143-215.3 

(a)(1). 

SECTION .0300 - ASSIGNMENT OF STREAM 
CLASSIFICATIONS 

.0301 CLASSIFICATIONS: GENERAL 

(a) Schedule of Classifications. The classifica- 
tions assigned to the waters of the State of North 
Carolina are set forth in the schedules of classi- 
fications and water quality standards assigned to 
the waters of the river basins of North Carolina, 
15A NCAC 2B .0302 to .0317 which are on file 
in the Office of the Attorney General of North 
Carolina. These classifications are based upon 
the existing or contemplated best usage of the 
various streams and segments of streams in the 
basin, as determined through studies and evalu- 
ations and the holding of public hearings for 
consideration of the classifications proposed. 

(b) Stream Names. The names of the streams 
hsted in the schedules of assigned classifications 
were taken as far as possible from United States 
Geological Survey topographic maps. Where 
topographic maps were unavailable, U.S. Corps 
of Engineers maps, U.S. Department of Agricul- 
ture soil maps, and North Carolina highway 
maps were used for the selection of stream 
names. 

(c) Classifications. The classifications assigned 
to the waters of North Carolina are denoted by 
the letters WS-1, WS-II, WS-IH, WS-IV, B, C, 
SA, SB, and SC in the column headed "class." 
A brief explanation of the "best usage" for which 
the waters in each class must be protected is 
given as follows: 



Fresh Waters 



Class WS-I: 



( V ) Dioxin 
,VD 



0.000013 ng I: 
1 1 exachlorohutadiene . 



0.445 



ug I; 



waters protected as_ water 
supplies which are in_ na- 
tural and uninhabited tin- 
tlovelopcd watersheds; 

point source discharges of 



290 



6:6 l\ORTH CAROLI1W.4 REGISTER June 14, 1991 



PROPOSED RULES 



Class WS- U II: 



treated wastewater are 
permitted pursuant to 
Rules .0/04 and .0211 q[ 
this Subchapter; local non 
point source control pro- 
grams to control nonpoint 
sources source and 
stormwater discharge of 
pollution are required; 
suitable for all Class C 
uses; 

waters protected as water 
supplies which are gener- 
ally in natural €md unin 
habited er- predominantly 
undeveloped -(-fmi 

urbanized) watersheds; 
point source discharges of 
treated wastewater are 
permitted pursuant to 
Rules .0104 and .0211 of 
this Subchapter; tie point 
source discharges ^fe p^r^ 
milled, except those exist 
i»g di.ichtirges qualifying 
fe¥- « General Permit a€- 

ef Urif A'CriC iU m^ 

specifically approved bf ike 
Commission a* the Ume ef 
classification; and local 
land management nonpoint 
source control programs to 
control nonpoint source 
and stormwater discharge 
of pollution are required; 
suitable for all Class C 
uses; 
Class WS- 4-k- III: waters protected as water 
supplies which are gener- 
ally in low to moderately 
developed ( urbanized } 

watersheds; point source 
discharges of treated 
wastewater are permitted 
pursuant to Rules .0104 
and .0211 of this Subchap- 
ter: discharges aiv i^e- 
striclcd (e primarily 
domestic wastm^aler er tn- 
duslrial non process waters 
specifically approved bf ihe 
Commission; local land 
management nonpoint 

source c o ntrol programs to 
control nonpoint source 
and stormwater discharge 
of pollution are required; 



r^l TX/C ITT. 



Class WS-IV: 



Class B: 
Class C: 

Tidal Salt Waters 
Class SA: 

Class SB: 
Class SC: 



suitable for all Class C 
uses; 

water supply segment with 
»& categorical restrictions 
e» watershed development 
er discharges; suitable feiF 
€til Class G uses; 
waters protected as_ water 
supplies which are generally 
in moderately to highly de- 
veloped watersheds; point 
source discharges of 
treated wastewater are 
permitted pursuant to 
Rules .0104 and .0211 of 



this Subchapter; local 
point source control pro 



grams to control nonpoint 
source and stormwater dis- 
charge of pollution are re- 
quired; suitable for all 
Class C uses; 



primary recreation and any 
other usage specified by 
the "C" classification; 
aquatic life propagation 
and survival, fishing, 
wildlife, secondary recre- 
ation, and agriculture. 



sheUfishing for market 
purposes and any other 
usage specified by the 
"SB" and "SC" classifica- 
tion; 

primary recreation and any 
other usage specified by 
the "SC" classification; 
aquatic life propagation 
and survival, fishing, 
wildlife, and secondary re- 
creation. 



Supplemental Classifications 



Trout Waters: 



Swamp Waters: 



NSW: 



Suitable for natural trout 
propagation and mainte- 
nance of stocked trout; 
Waters which have low 
velocities and other natural 
characteristics which are 
different from adjacent 
streams; 

Nutrient Sensitive Waters 
which require limitations 
on nutrient inputs; 



6:6 NORTH CAROLINA REGISTER June 14. 1991 



291 



PROPOSED RULES 



HQW; High Qualjty Waters 

which are waters that arc 
rated as excellent based on 
biological and 

physical/ chemical charac- 
teristics through division 
monitoring or special 
studies, native and special 
native trout waters (and 
their tributaries) desig- 
nated by the Wildlife Re- 
sources Commission, 
primary nursery areas 
(PNA) designated by the 
Marine Fisheries Commis- 
sion and other functional 
nursery areas designated 
by the Wildlife Resources 
Commission or other ap- 
propriate agencies, critical 
habitat areas designated by 
the Wildlife Resources 
Commission or the De- 
partment of Agriculture, 
all water supply 
watersheds which are ei- 
ther classified as WS-I or 
WS-II or those for which 
a formal petition for re- 
classification as WS-I or 
WS-II has been received 
from the appropriate local 
government and accepted 
by the Division of Envi- 
ronmental Management 
and all Class SA waters. 

ORW: Outstanding Resource 

Waters which are unique 
and special waters of ex- 
ceptional state or national 
recreational or ecological 
significance which require 
special ptrotection to 
maintain existing uses. 

(d) Water Quality Standards. The water qual- 
ity standards applicable to each classification as- 
signed are those established in 15A NCAC 2B 
.0200, Classifications and Water Quality Stand- 
ards Applicable to the Surface Waters of North 
Carolina, as adopted by the North Carolina En- 
vironmental Management Commission. 

(e) Index Number. 

( 1 ) Reading the Index Number. The index 
number appearing in the column so des- 
ignated is an identification number as- 
signed to each stream or segment of a 
stream, indicating the specific tributary 



progression between the main stem stream 
and the tributary stream. 
(2) Cross-Referencing the Index Number. 
The inclusion of the index number in the 
schedule is to provide an adequate cross 
reference between the classification sched- 
ules and an alphabetic list of streams. 

(f) Classification Date. The classification date 
indicates the date on which enforcement of the 
provisions of Section 143-215.1 of the General 
Statutes of North Carolina became effective with 
reference to the classification assigned to the var- 
ious streams in North Carolina. 

(g) Reference. Copies of the schedules of 
classifications adopted and assigned to the waters 
of the various river basins may be obtained at no 
charge by writing to: 

Director 
Division of Environmental Management 
Depa t lmofit ef Saimal Rosou f cos 
*W Coinmnmly Development 
Department of Em'ironment, Health, 
and Natural Resources 
Post Office Box iMU 29535 
Raleigh, North Carolina iT^U 27626-0535 
(h) Places where the schedules may be in- 
spected: 

Division of State Library 

Archives -- State Library Building 

109 E. Jones Street 

Raleigh, North Carolina. 

(i) Unnamed Streams. 

(1) Any stream which is not named in the 
schedule of stream classifications carries 
the same classification as that assigned to 
the stream segment to which it is tributary 
except: 

(A) unnamed streams specifically described 
in the schedule of classifications; or 

(B) unnamed freshwaters tributary to tidal 
saltwaters will be classified "C"; or 

(C) after November 1, 1986, any newly 
created areas of tidal saltwater which are 
connected to Class SA waters by ap- 
pro\ed dredging projects will be classified 
''SC" unless case-by-case reclassification 
proceedings are conducted. 

(2) The following river basins ha\e different 
policies for unnamed streams entering 
other states or for specific areas of the 
basin: 

Hiwassee River Basin (Rule .0302); Little 
Tennessee River Basin and Savannah 
Ri\er Drainage /Vrea (Rule .0303); French 
Broad River Basin (Rule .0304); Watauga 
River Basin (Rule .0305); Broad River 
Basin (Rule .0306); New River Basin 
(Rule .0307); Catawba River Basin (Rule 



292 



6:6 NORTH CAROLINA REGISTER June 14, 1991 



PROPOSED RULES 



.0308); Yadkin-Pee Dee River Basin 
(Rule .0309); Lumber River Basin (Rule 
.0310); Roanoke River Basin (Rule 
.0313); Tar- Pamlico River Basin (Rule 
.0316); Pasquotank River Basin (Rule 
.0317). 

Statutory Authority G.S. 143-214.1; 143-215. 1; 
l43-2l5.3(a)(l). 

.0302 HIWASSEE RIVER B.\SIN 

(c) The Hiwassee River Basin Schedule of 
Classifications and Water Quality Standards was 
amended effective: 



(11) March 1, 1992. 



August 9, 1981; 
Februar\' 1, 1986; 
March 1, 1989; 
August 1, 1990; 
March 1. 1992. 



(1) 
(2) 
(3) 
(4) 

(e) The Schedule of Classifications and Water 
Quality Standards for the Hiwassee Ri\er Basin 
was amended etfective March _f 1992 with the 
reclassification of all water supplv waters (\\'aters 
with a primary' classification of WST, WSTI or 
WS-III). These waters were reclassified to WST, 
WSTI. WST 1 1 or WSTV. depcndmg on t_he 
characteristics of the watershed, as defined in the 
revised water supply protection regulations (ISA 
NCAC 2B .0100, .0200 and .0300) which became 
effective on March J_^ 1992. \n some cases, 
streams with primary classifications other than 
WS were reclassified to a WS classification due 
to their prQ>dmity and linkage to water supply 
\\'aters. In other cases, waters were reclassified 
from a WS classification to an alternate appro- 
priate primary classification after being identified 
as downstream of a water supply intake or asso- 
ciated with an intake which is no longer in use. 

Statutory Authority G.S. 143-214. 1; 143-215. 1: 
143-215.3(a)(l). 

.0303 LITTLE TENN RIVER BASIN AND 

SAV.\NNAH RI\ER DRAINAGE AREA 

(c) The Little Tennessee River Basin and 
Savannah River Drainage .Area Schedule of 
Classifications and Water Quality Standards was 
amended effective: 

(1) Februar>- 16, 1977; 

(2) March 1, 1977; 

(3) July 13, 1980; 

(4) February 1, 1986: 

(5) October 1, 1987; 

(6) March 1, 1989; 

(7) January 1, 1990; 

(8) July 1, 1990; 

(9) August 1, 1990; 
(10) March 1, 1991; 



(h) The Schedule of Classifications and Water 
Quality Standards for the Little Tennessee River 
Basin and Savannah River Drainage Area was 
amended effecti\'e .March _L 1992 with the re- 
classification of all \sater supply waters (waters 
with a primary" classification of WS-I, WS-H or 
WS-III). Tfiese waters were reclassified to WS-I, 
WS-II, WS-III or WS-IV, dependmg on the 
characteristics of the watershed, as defined in the 
revised water supplv protection regulations ( 15A 
NCAC 2B .0100, .0200 and .0300) which became 
effective on .March 1, 1992. In some cases, 



streams with primary' classifications other than 
WS were reclassified to a WS classification due 
to their proximity and linkage to water supply 
waters. In other cases, waters were reclassified 
from a WS classification to an alternate appro- 
priate primary' classification after being identified 
as downstream of a water supply intake or asso- 
ciated with an mtake which is no longer in use. 

Statutory Authority G.S. 143-214.1; 143-215.1; 
l43-2I5.3(a)(l). 

.0304 FRENCH BROAD RIVER B.VSIN 

(c) The French Broad River Basin Schedule 
of Classifications and Water Quality Standards 
was amended effective: 

(1) September 22, 1976; 

(2) March 1, 1977; 

(3) August 12, 1979; 

(4) April 1, 1983; 

(5) August 1, 1984; 

(6) August 1, 1985; 

(7) February 1, 1986; 

(8) May 1, 1987; 

(9) March 1, 1989; 

(10) October 1, 1989; 

(11) Januan- 1, 1990; 

(12) August 1, 1990; 

(13) March 1, 1992. 

(g) Ihe Schedule of Classifications and Water 
Quality Standards for the French Broad Ri\er 
Basin was amended effective .March J_^ 1992 with 
the reclassification of all water supply waters 
(waters ^ith a pnmarv classification of WS-I, 
WS-II or WS-III). These waters were reclassified 
to WS-I, WS-II, WS-III or WS-IV. dependmg 
on the characteristics of the watershed, as defined 
in the revised water supplv protection regulations 
(15A NCAC 2B .0100, .0200 and .0300) which 
became elfecti\e on March _L 1992. In some 
cases, streams with pnmarv classifications other 
than WS were reclassified to a WS classification 
due to their proximity and linkage to water sup- 
ply waters. In other cases, waters were reclassi- 
fied from a WS classification to an alternate 



6:6 NORTH CAROLINA REGISTER June 14, 1991 



293 



PROPOSED RULES 



appropriate primar\' classification after being 
identified as downstream of a water supply intake 
or associated with an intake wiuch is no lontzer 
in use. 

Statutoiy Auihohtv G.S. 143-214. 1: 143-215.1; 
l43-2l5.3{a)(I). 

.0305 \\ ATALGA RI\ KR BASIN 

(c) The Watauga River Basin Schedule of 
Classifications and Water Quality Standards was 
amended effectix'e; 

(1) August 12, 1979; 

(2) Februar>- 1, 1986; 

(3) October 1, 1987; 

(4) Au2ust 1, 1989; 

(5) August 1, 1990; 

(6) December 1, 1990; 

(7) March f _1922, 

(f) The Schedule of Classifications and Water 
QualilN Standards for the Watauga Ri\er Basin 
was amended etfecti\-e March _f 1^)'^>2 with the 
reclassilication cA all water ^uppl\• waters (waters 
with a pnmar\" classihcation o\_ WST. WS-II or 
WS-lIi). These waters were reclassitied to WS-1, 
WS-II. WS-111 oi WS-1\ . depending on the 
charactcnstics at the watershed, as dehned in the 
re\"ised water supply protection regulations ( 1 5-\ 
NC.XC 2B .0101). .1)21111 and .0.^111)) which became 
effectne on March _f 1992. In some cases, 
streams with pnmar\ classifications other than 
WS were reclassified to a WS classihcation due 
to their proximit\" and linkage tP water suppK 
waters. In other ca?-es. waters were reclassified 
from a \\'S classitication to an alternate appro - 
pnate pnmar\' classihcation aher being identitied 
as downstream of a water suppK' intake or asso- 
ciated with an intake which is no longer in use. 

Statuion- .-tuthoritv G.S. 1 43-2 1 4. 1: 143-215.1; 

l43-2I5.3(a}(l). ' 

.0306 BRO.^D Rl\ ER BASIN 

(c) The Broad Ri\'er Basin Schedule of Classi- 
fications and Water Quahty Standards was 
amended effective; 

(1) March 1, 1977; 

(2) February 12. 1979; 

(3) August 12, 1979; 

(4) April 1, 1983; 

(5) February 1, 1986; 
{6]_ March 1. 1992. 

(d) T he Schedule of Classifications and Water 
QualitN' Standards lor the Broad Ri\er Basin was 
amended ellectne .March J_, 1^H)2 with the re- 
classilication o[_ aU water supply waters (waters 
with a pnmar\ classification of W'S-I. \\'S-I1 or 
WS-lII). I hese waters were reclassified to WS-|. 



WS-II, WS-IlI or WS-IV. depending on the 
characteristics of the watershed, as defined in the 
revised water suppK' protection regulations ( 1 5A 
NCAC 2B .0100. .1)200 and .0300) which became 
etfecti\'e on .March _f 1992. In some cases, 
streams with primar\ classifications other than 
WS were reclassified to a WS classification due 
to their proximity and linkage to water supply 
waters. In other cases, waters were reclassified 



from a WS classification to an alternate appro- 
pnate pnmar\ classification after being identified 
as downstream ot a water supply intake or asso- 
ciated with an intake which is no longer in use. 

Slamory Authohtv G.S. 143-214. J; 143-215. 1; 
l43-2l5.3(a)i I). ' 

.0.^07 NEW Rl\ ER BASIN 

(c) The New Ri\er Basin Schedule of Classi- 
fications and Water Quality Standards was 
amended effective: 



(1) 
(2) 
(3) 
(4) 
(5) 
(6) 



August 10, 1980; 
April 1, 1983; 
Februarv 1, 1986; 
August 1, 1989; 
August 1, 1990; 
March 1. 1992. 



(e) The Schedule of Classifications and Water 
Quality Standards for the New Riser Basin was 
amended eflecti\e .March 1. l'J'^'2 with the re- 



classification cA iili ^'•ater supph waters (waters 
with a pnmary classification of W S-I. WS-II or 
WS-llI ). 1 hese waters were reclassified to WS-I. 
WS-11. WS-I 1 1 or WS-IV. depending on the 
charactcnstics of the watershed, as defined in the 
re\ised water suppK' protection regulations ( 1 5.\ 
NCAC 2B .1)100. ,0200 and .0300) which became 
effectne on .March _f l')'-^2. Jjn some cases, 
streams with pnmar\' classifications other than 
WS were reclassified to a WS classification due 
to their proximity and linkage to water supply 
waters. In other cases, waters were reclassified 
from a WS classification to an alternate appro - 



pnate pnman, classification alter being identified 
as downstream of a water suppK intake or asso- 
ciated with an intake which is no longer m use. 

Statuion- .-hiihority G.S. 143-214. 1: 143-215.1; 
l43-2l5.3{a)i I). 

.0308 CATAWBA Rl\ FR BASIN 

(c) The Catawba River Basin Schedule of 
Classifications and Water Quality Standards was 
amended effective: 

(1) March 1, 1977; 

(2) August 12, 1979; 

(3) April 1, 19S2; 

(4) January 1, 1985; 



294 



6:6 SORTH CAROLINA REGISTER June 14, 1991 



PROPOSED RULES 



(5) 


August 1, 1985; 


(6) 


February 1, 1986 


(7) 


March 1, 1989; 


(8) 


May 1, 1989; 


(9) 


March 1, 1990; 


(10) 


August 1, 1990; 


(11) 


March 1, 1992. 



(g) The Schedule of Classifications and Water 
Quality Standards for the Catawba River Basin 
was amended effective March _1^ 1992 with the 
reclassification of all water supply waters (waters 
with a pnmary classification of WS-I, WS-ll or 
WS-lll). These waters were reclassified to WS-l, 
WS-lI. WS-llI or WS-IV, dependmg on t_he 
charactenstics of the watershed, as defined in the 
revised water supply protection regulations ( 15A 
NCAC 2B .OIUU, .0200 and .0300) which became 
effective on March j^ 1992. In some cases, 
streams with primary classifications other than 
WS were reclassified to a \VS classification due 
to their proximity and linkage to water supply 
waters. In other cases, waters were reclassified 
from a WS classification to an alternate appro- 
priate primary classification after being identified 
as downstream of a water supply intake or asso- 
ciated v\ith an intake which is no longer in use. 

Statutorv Authority G.S. 143-2/4. /; 143-215. 1; 
l43-2l5.3(a)(l). 

.0309 YADKIN-PEE DEE RIVER BASIN 

(c) The \'adkin-Pee Dee River Basin Schedule 
of Classifications and Water Quality Standards 
was amended effective: 

(1) February 12, 1979; 

(2) March 1, 1983; 

(3) Auaust 1, 1985; 

(4) February 1, 1986; 

(5) October 1, 1988; 

(6) March 1, 1989; 

(7) January- 1, 1990; 

(8) August 1, 1990; 
(9} March 1, 1992. 

(g) The Schedule of Classifications and Water 
QuaUtN' Standards for the 't'adkin-Pee Dee River 
Basin was amended effective .March ]_, 1^92 with 
the reclassihcation of all water supply waters 
(waters with a primary classification of WS-I. 
WS-ll or WS-lll). These waters were reclassified 
to WS-I. WS-ll. WS-lll or WS-IV, depending 
on the charactenstics of the watershed, as defmed 
in the revised water supply protection regulations 
(15A NCAC 2B .0100. .0200 and .0300) which 
became effective on March _T 1992. In some 
cases, streams with pnmary classifications other 
than WS were reclassified to a WS classification 
due to their proximity and linkage to water sup- 
ply waters. In other cases, waters were reclassi- 



fied from a WS classification to an alternate 
appropriate primary classification after being 
identified as downstream of a water supply intake 
or associated with an intake which is no longer 
in use. 



Statutory Authority G.S. 1 43- 2 1 4. 1; 143-21 5.1; 
l43-2l5.3(a)(l). 

.0310 LL,MBER RIVER B.\SIN 

(c) The Lumber River Basin Schedule of 
Classification and Water Quality Standards was 
amended effective: 
(1) March 1, 1977; 

December 13, 1979; 

September 14, 1980; 

Apnl 12, 1981; 

April 1, 1982; 

Febmary 1, 1986; 

July 1, 1990; 

August 1, 1990; 

March 1, 1992. 



(2) 
(3) 

(4) 
(5) 
(6) 
(7) 
(8) 
(21 
(£1 



The Schedule of Classifications and Water 



Quality Standards for the Lumber River Basin 
was amended effective March _1^ 1992 with the 
reclassification of all water supply waters (waters 
with a primary classil'ication of WS-I, WS-ll or 
WS-lll). These waters were reclassified to WS-I. 
WS-ll, WS-IIl or WS-IV. depending on the 
characteristics of the watershed, as defined in the 
revised water supply protection regulations ( 15.A 
NCAC 2B .0100, .0200 and .0300) which became 
effective on March 1, 1992. In some cases. 



streams with primary classifications other than 
WS were reclassified to a WS classification due 
to their proximity and linkage to water supply 
waters. In other cases, waters were reclassified 
from a WS classification to an alternate appro- 
priate primary' classification alter being identified 
as downstream of a water supply intake or asso- 
ciated with an intake which is no longer in use. 



Statutory Authority G.S. 
l43-2l5.3(a)(l). 



143-214.1: 1 43-2 IS. I: 



.031 1 CAPE FEAR RIVER BASIN 

(b) The Cape Fear River Basin Schedule of 
Classification and Water Quality Standards was 
amended effective: 

(1) March 1, 1977; 

(2) December 13, 1979; 

(3) December 14, 1980; 

(4) August 9, 1981; 

(5) ApriJ 1, 1982; 

. (6) December 1, 1983; 

(7) January 1, 1985; 

(8) August 1, 1985; 

(9) December 1, 1985; 



6:6 NORTH CAROLINA REGISTER June 14, 1991 



295 



PROPOSED RULES 



Februarv 1, 1986; 
Julv 1, 1987; 
October 1, 1987; 
March 1, 1988; 
June 1, 1988; 
Julv 1, 1988; 
January 1, 1990; 
Au2ust 1, 1990; 
March 1, 1992. 



(10) 

(11) 
(12) 
(13) 
(14) 
(15) 
(16) 
(17) 

mi 

(•si) J he Schedule of Classifications and Water 
Quality Standards for the Cape Fear River Basin 
was amended effective March _K 1992 with the 
reclassitlcation of all water supplv waters (waters 
with a pninaPv' classil'ication of WS-I, WS-II or 
WS-Ill). These waters were reclassified to WS-I, 
WS-Il. WS-Ill or WS-IV, depending on the 
charactenstics of the watershed, as defined in the 
re\'ised water supplv protection regulations ( 15A 
NCAC 2B .0100. .0200 and .0300) which became 
effecti\e on .March J_^ 1992. In some cases, 
streams with prunarv classifications other than 
WS were reclassified to a WS classitlcation due 
to their proximitv and linkage to water supplv 
waters. In other cases, waters were reclassified 



WS were reclassified to a WS classification due 
to their proximity and linkage to water supply 
waters. In other cases, waters were reclassified 
trom a WS classification to an alternate appro - 
pnate primary classification after being identified 
as downstream of a water supplv intake or asso- 
ciated with an intake which is no longer in use. 



Statutory Authority G.S. 
l43-2l5.3(a)(l). 



143-214.1; 143-21 5.1: 



a££r 



.0315 NELSE RIVER BASIN 

(b) The Neuse River Basin Schedule of Clas- 
sification and Water Qjaality Standards was 
amended effective: 

(1) March 1, 1977; 

(2) December 13, 1979; 

(3) September 14, 1980; 

(4) August 9, 1981; 

(5) January 1, 1982; 

(6) April 1, 1982; 

(7) December 1, 1983; 

(8) January 1, 1985; 

(9) August 1, 1985; 

(10) February' 1, 1986; 

(11) May 1, 1988; 

(12) Julv 1, 1988: 

(13) October 1, 1988; 

(14) January- 1, 1990; 

(15) August 1, 1990; 

(16) December 1, 1990; 

(17) Julv 1, 1991; 

(18) .March 1. 1992. 
(h) The Schedule of Classifications and Water 

Quality Standards for the Neuse River Basin was 
amended effective .March 1. 1992 with the re- 



from a WS classification to an alternate 
priate primary classification alter being identitied 
as downstream of a water suppK' intake or asso- 
ciated with an intake which is no longer in use. 

Statutorv Authoritv G.S. 143-2 J 4. 1; 143-2 1 5.1; 
l43-2l5.3{a){I). ' 

.0313 RO.\NOKE RIVER BASIN 

(c) The Roanoke River Basin Schedule of 
Classification and Water Quality Standards was 
amended effective: 

(1) May 18, 1977; 

(2) July 9, 1978; 

(3) Julv 18, 1979; 

(4) July 13, 1980; 

(5) March 1, 1983; 

(6) August 1, 1985; 

(7) Februan- 1, 1986; 

(8) Julv 1, l'991; 

(9) March 1. 1992. 
(e) The Schedule of Classifications and Water 

(jualitN Standards for the Roanoke Ri\er Basm 
was amended effecti\'e March _f IQ'^2 with the 
reclassification of all water supplv waters (waters 
uith a pnmar.' classification of WS-I, WS-II or 
WS-Ill I. Ihese waters were reclassified to WS-I. 
WS-11. WS-lII or WS-IV. depending on the 
characteristics of the watershed, as defined in the 
re\ised water supplv protection regulations ( 15A 
NCAC 2B .0100, .0200 and .0300) which became 
effectne on .March J_^ 19Q2. In some cases, 
streams with pnmar\' classifications other than .0316 TAR-PA.MLICO RIVER BASIN 



classification of all water supplv waters (waters 
with a primary' classification of WS-I. WS-II or 
WS-III). These waters were reclassitled to WS-I. 
WS-II, WS-IIl or WS-IV, dependmg on the 
characteristics of the watershed, as defined in the 
revised water supplv protection regulations ( 15A 
NCAC 2B .0100, .0200 and .0300) which became 
effecti\'e on March 1. 1992. In some cases. 



streams with prim an' classifications other than 
WS were reclassified to a WS classification due 
Xo_ their proximity and Unkage to water supply 
waters. In other cases, waters were reclassified 
from a WS classification to an alternate appro- 
priate pnmarv classification after being identified 
as downstream of a water supplv intake or asso- 
ciated with an mtake which is no longer in use. 

Statutory Authority G.S. 1 43-2 1 4. 1; 1 43-2 15. 1; 
l43-2I5.3(a)(l). 



296 



6:6 NORTH CAROLINA REGISTER June 14, 1 99 1 



PROPOSED RULES 



(c) The Tar- Pamlico River Basin Schedule of 
Classification and Water Quality Standards was 
amended effective: 

(1) March 1, 1977; 

(2) November 1, 1978; 

(3) June 8, 1980; 

(4) October 1, 1983; 

(5) June 1, 1984; 

(6) August 1, 1985; 

(7) February' 1, 1986; 

(8) August 1, 1988; 

(9) January 1, 1990; 

(10) August 1, 1990; 

(11) March 1, 1992. 

(g) The Schedule of Classifications and Water 
Quality Standards for the Tar- Pamlico River 
Basin was amended effective March J^ 1992 with 
the reclassification of all water supply waters 
(waters with a pnmarv classification of \\^S-I, 
WS-11 or WSTll). These waters were reclassified 
to WS-I. WS-11, WS-11 1 or WS-IV, dcpcndmg 
on the characteristics of the watershed, as defined 
in the revised water supply protection regulations 
( 1 5A NCAC m .0100, .0200 and .0300) which 
became cffecti\'e on .March \^ 1992. ]n some 
cases, streams with primars' classifications other 
than WS were reclassified to a WS classification 
due to their proximity and linkage to water sup- 
ply waters. In other cases, waters v\ere reclassi- 
fied from a WS classilication to an alternate 
appropnate pnmars' classilication after being 
identified as downstream of a water supply intake 
or associated with an intake which is no longer 
in use. 



Statutory Authority G.S. 
l43-2l5.3ia){l). 



1 43-2 1 4. 1; 143-215.1; 



.0317 F'ASQLOTANK RIVKR B.VSIN 

(c) The Pasquotank River Basin Schedule of 
Classifications and Water Quality Standards was 
amended effective; 



(1) 
(2) 
(3) 
(4) 
(5) 
(6) 
(7) 

18],, 

{JX I he Schedule of Classifications and Water 
QLialitv 



March 1, 1977; 
May 18, 1977; 
December 13, 1979; 
January 1, 1985; 
February 1, 1986; 
January 1, 1990; 
August 1, 1990; 
March 1. 1992. 
le Schedule of 
Standards for the 
Basin was amended etTective 



River 



Pasquotank 

March 1, 1992 with 

the reclassification of all water supply waters 
(waters with a pnmar\' classification of WS-I, 
WS-II or WS-III). I hese waters were reclassified 
to WS-I. WS-II. WS-IIl or WS-IV, dependmg 
on the charactcnstics of the watershed, as defined 



in the revised water supply protection regulations 
(15A NCAC 2B .0100, .0200 and .0300) which 
became effective on March j_^ 1992. In some 
cases, streams with primary classifications other 
than WS were reclassified to a WS classification 
due to their proximity and Unkage to water sup- 
ply waters. In other cases, waters were reclassi- 
fied from a WS classification to an alternate 
appropriate primary classification after being 
identified as downstream of a water supply intake 
or associated with an intake which is no longer 
in use. 

Statutory Authority G.S. 143-214. 1; 143-215.1; 
l43-2l5.3(a)(l). 

•k^-k'k'k-k'k'k'k^-k'k'kitic'kie-k 



No 



otice /.f hereby given in accordance with G.S. 
I50B-I2 that the Environmental Management 
Commission intends to amend rule(s) cited as 
I5A NCAC 2D .0524, .0525. .0914, .1002, and 
.1104; 2H .0610. 

1 he proposed effective date of this action is De- 
cember I, 1991. 

1 he public hearing will be conducted at 7:00 
p.m. on July 16. 18, 22, 1991 at the following lo- 
cations: 

July 16, 1991 

Commissioner' s Meeting Rm. 

Durham Co. Courthouse 

200 Main St. 

Durham, NC 

July 18, 1991 

Health Dept. Conf. Rm. 

Ira McDowell Govt. Complex 

2222 S. Fayetteville St. 

Asheboro. A'C 

July 22. 1991 

Charlotte- Mecklenburg Govt. Ctr. 

Room A 118 600 E. 4th St. 

Charlotte. NC 

C. omment Procedures: A II persons interested in 
these matters are invited to attend the public 
hearing. Any person desiring to comment for 
more than three minutes is requested to submit a 
written statement for inclusion in the record of 
proceedings at the public hearing. The hearing 
officer may limit oral presentation lengths if many 
people want to speak to frve minutes. The record 



6:6 NORTH CAROLINA REGISTER June 14, 1991 



297 



PROPOSED RULES 



of proceedings will remain open for 30 days fol- 
lowing ihe hearing to recei^-e additional written 
statements. To be included, the statement must 
be received by the Department within 30 days af- 
ter the hearing date. 

.Addition information concerning the hearing or 
the proposals may be obtained by contacting: 

Mr. Thomas C. .Allen 

Division of Environmental Management 

P. O. Box 20535 

Raleigh, Xorth Carolina 27626-0535 

(9/9j 733-3340 

CHAPTER 2 - EN\ IRONMENTAL 
MANAGEMENT 

SLBCHAPTER 2D - AIR POLI.LTION 
CONTROL REQUIREMENTS 

SECTION .0500 - EMISSION CONTROL 
STANDARDS 

.0524 NEW SOURCE PERFORMANCE 
STANDARDS 

(a) Sources of the following types when subject 
to new source performance standards 
promulgated in 40 CFR Part 60 shall comply 
with the emission standards, monitoring and re- 
porting requirements, maintenance requirements, 
notification and record keeping requirements, 
pertbrmance test requirements, test method and 
procedure provisions, and any other provisions, 
as required therein, rather than with any 
otherwise-applicable regulation in this Section &f 
Section .0900 ef tfe Subchapter which would be 
in conflict thereu ith, but sources emitting \olatiIe 
organic compounds that are located m an ozone 
nonattamment area shall comply with the more 
stnngent of the foU owing requirements or the re- 
quirements in Section .0900 of this Subchapter: 



Statutory Authority G.S. 
143-215. 107 (a) (5). 



143-2/5.3 (a) (1); 



.0525 NATIONAL EMISSION STANDARDS 
FOR HAZARDOUS AIR POLLUTANTS 

(a) Sources emitting pollutants of the following 
types when subject to national emission stand- 
ards for hazardous air pollutants promulgated in 
40 CFR Part 61 shall comply with emission 
standards, monitoring and reporting require- 
ments, maintenance requirements, notification 
and record keeping requirements, performance 
test requirements, test method and procedure 
provisions, and any other pro\isions. as required 
therein, rather than with any other\\'ise- 



applicable regulation in this Section ef Section 
.O'JOO &f tfe* Subchapter which would be in con- 
flict therewith, but sources emitting volatile or- 
ganic compounds that are located in an ozone 
nonattamment area shall comply with the more 
stnngent of the following requirement s or the re- 
quirements m Section .0900 of this Subchapter: 

Statutory Authority G.S. 143-215.3 (a) (1): 
143-215.107 (a) (5). 

SECTION .0900 - VOLATILE ORG.4NIC 
COMPOUNDS 

.0914 DETERMINATION OF \ OC EMISSION 
CONTROL SYSTEM EFFICIENCY 

(b) The following procedures shall be used to 
determine efficiency: 

(2) The efficiency of any capture system used 
to transport the volatile organic com- 
pound emissions from their point of orig- 
ination to the control equipment shall be 
computed using accoptod ongineoring 
practice afi4 m a manner approv e d bv Uie 
Dir e ctor, a method contained in 35 PR 
26S14, Jun~e 29. 1990, pages 26887 to 
26909 (Appendix B of 40 CPR 52.741). 

Statutory Authority G.S. 143-215.3 (a) (1); 
143-215.68: 143-215.107 (a) (5). 

SECTION .1000 - MOTOR VEHICLE E.MISSION 
CONTROL STANDARD 

.1002 APPLICABILITY 

(b) The emission standards will become effec- 
ti\e in the following counties on the dates indi- 
cated below: 



Effective Date 



April 1, 1991 
April 1, 1991 
July 1. 1991 
July 1, 1991 
July 1, 1992 



County 

Mecklenburg 

Wake 

Fors\"th 

Guilford 

Durham 

Gaston 

Davidson 

Cabarrus 

Randolph JuK _L 

Orange 

Union 

Statutorv Authority G.S. 20-128.2(a); 
143-2I5.3(a)(l); ' 143-215. 107(a)(3); 

143-215. 107(a)(6): 143-215. 107(a)(7). 



July 1, 
Januar 


1992 
■ 1, 1993 


Januan 


- 1, 1993 


July 1, 
July 1. 
July 1. 


1993 
1993 
1993 



29S 



6:6 SORTH CAROLINA REGISTER June 14, 1991 



PROPOSED RULES 



SECTION .1 100 - CONTROL OF TOXIC AIR POLLUTANTS 

.1 104 TOXIC AIR POLLUTANT GUIDELINES 

(a) A facility shall not emit any of the following toxic air pollutants in such quantities that may cause 
or contribute beyond the premises (contiguous property boundary) to any significant ambient air con- 
centration that may adversely affect human health. In determining these significant ambient air con- 
centrations, the division shall be guided by the following list of acceptable ambient levels in milligrams 
per cubic meter at 77° F (25° C) and 29.92 inches (760 mm) of mercury pressure (except for asbestos): 







Aimual 


24-hour 


I -hour 


1 5-minute 






(Carcinogens) 


(Chronic 


(Acute 


(Acute 








Toxicants) 


Systemic 
Toxicants) 


Irritants) 


(6) 


arsenic and inoraanic 
arsenic compounds 


2.3x10' 








(73) 


styrene 




-104 


10.6 


AirS 



Statutory Authority G.S. 143-215.3 (a) (I); 143-215.107 (a) (3), (4) (5); I43B-282. 
SUBCHAPTER 211 - PROCEDURES FOR PERMITS: APPROVALS 
SECTION .0600 - AIR QUALITY PERMITS 

.0610 PERMIT REQUIREMENTS FOR TOXIC AIR POLLUTANTS 

(h) A permit to emit toxic air pollutants shall not be required for any facility whose actual emissions 
from all sources are no more than the following; 

Ib/yr lb/day Ib/hr lb/15 min. 

(9) arsenic and inorganic 

arsenic compounds 0.016 

(92) styrene :^ 2n_ 2^ 

Statutory Authority G.S. l43-2l5.3(a)( I ); 1 43-2 1 5. 1 OS; 143B-282. 



■k-k^-k-k-k-k-k-k-k-k-k-k-k-k-h-k-k 



No 



otice is hereby given in accordance with G.S. 
I50B-I2 that the EHNR - Division of Coastal 
Management intends to amend rule(s) cited as 
I5A NCAC 7H .0208, .0306 and I5A NCAC 7 J 
.0204. 

I he proposed effecti\'e date of this action is No- 
vember J, 1991. 

1 he public hearing will be conducted at 4:00 
p.m. on July 25, 1991 at the Duke University 
Marine Laboratory, Beaufort, NC. 

L, omment Procedures: All persons interested in 
this matter is invited to attend the public hearing. 
The Coastal Resources Commission will receive 
written comments up to the date of the hearing. 
Any person desiring to present lengthy comments 
is requested to submit a written statement for 
inclusion in the record of proceedings at the public 
hearing. Additional information concerning the 
hearing or the proposals may be obtained by con- 



tacting: Dedra Blackwell. Division of Coastal 
Management, P. O. Box 27687, Raleigh. NC 
27611-7687, (919) 733-2293. 

CHAPTER 7 - COASTAL MANAGEMENT 

SUBCHAPTER 7H -STATE GUIDELINES FOR 
AREAS OF ENVIRONMENTAL CONCERN 

SECTION .0200 - THE ESTUARINE SYSTEM 

.0208 USE STANDARDS 

(b) Specific Use Standards 
(1) Navigation channels, canals, and boat 
basins must be aligned or located so as to 
avoid primary nursery areas highly pro- 
ductive shellfish beds, beds of submerged 
vegetation, or significant areas of regularly 
or irregularly flooded coastal wetlands. 
(J) Maintenance excavation in canals, 
channels and boat basins within primary 
nursery areas, highly productive shellfish 
beds, beds of submerged vegetation or 
significant areas of regularly or irregularly 
flooded wetlands should be avoided. 
However, when essential to maintain a 



6:6 NORTH CAROLINA REGISTER June 14, 1991 



299 



PROPOSED RULES 



traditional and established use, mainte- 
nance excavation may be approved if the 
applicant meets all of the following criteria 
as shown by clear and convincing evi- 
dence accompanying the permit applica- 
tion. This Rule does not affect 
restrictions placed on permits issued after 
March 1, 1991. 

(i) The applicant can demonstrate and 
document that a water-dependent need 
exists for the excavation; and 
(ii) There exists a previously permitted 
channel which was constructed or 
maintained under permits issued by the 
State and or Federal government. If a 
natural channel was in use, or if a 
human-made channel was constructed 
before permitting was necessary, there 
must be clear evidence that the channel 
was continuously used for a specific 
purpose; and 
(iii) Excavated material can be rcmo\ed 
and placed in an appro\ed disposal area 
without significantly impacting adjacent 
nursery areas, shellfish beds, submerged 
vegetation or wetlands; and 
(iv) The original depth and width of a 
human-made or natural channel will 
not be increased to allow a new or ex- 
panded use of the channel. 

Statuton' Authoritv G.S. 1 1 3A- 107(b): 
I13A-I0S; I13A-I13(b): II3A-I24. 

SECTION .0300 - OCEAN HAZARD AREAS 

.0306 GENERAL USE STANDARDS FOR 
OCEAN HAZARD ARE.VS 

(1) Permits shall include the condition that any 
structure shall be relocated or dismantled when 
it becomes imminently threatened bv changes in 
shoreline configuration. This condition shall not 
affect the pennit holder's nght to seek authori- 
zation of temporar\' protecti\'e measures allowed 
under Subchapter 7H, Rule ■030S(a)(2). 



Statutory Authority G.S. 

I13A-II3(b)(6); H3A-124. 



II3A-107: 



SI BCHAPTER 7J - PROCEDURES FOR 

H.\NDLING M.\.IOR DEVELOPMENT 

PERMI IS: \ ARiANCE REQUESTS: APPEALS 

FROM MINOR DE\ ELOPMENT PER.MEF 
DECISIONS: AND DECLARATORY RULINGS 

SECTION .0200 - APPLICATION PROCESS 

.0204 PROCESSING THE APPLICATION 



(b) AppUcation processing will begin when an 
apphcation is accepted as complete. Before an 
application will be accepted as complete, the fol- 
lowing requirements must be met; 

(6) the application fee must be paid as set out 
in this Subparagraph: 

(A) Major development permit - a check 
or money order payable to the Depart- 
ment for two hundred fifty doUars 
($250.00). 

(B) Minor development permit - a check 
or money order payable to the permit- 
letting agency in the amount of t' l venty 
frre dolloro ($25.00). fiftv dollars ($50.00). 
Monies so collected may be used only in 
the administration of the permit program; 

Statutory Authority G.S. 113-229; 1I3A-II9; 
II3A-I22(c); I13A-I24. 



Jyotice is hereby given in accordance with G.S. 
1 508- 1 2 that the Department of EHNR. Division 
of Forest Resources intends to adopt rule(s) cited 
as ISA NC.AC9C .1007. 

1 he proposed effective date of this action is So- 
vember 1, 1991. 

1 he public hearing will be conducted at 2:00 
p.m. on July 31, 1991 at the Ground Floor Hear- 
ing Room, Archdale Building, 512 N. Salisbuiy 
Street, Raleigh, NC. 



Co 



omment Procedures: A II interested persons 
are im'ited to attend. Oral comments will be re- 
ceived at the Public Hearing limited to three min- 
utes per speaker. Written comments will be 
accepted for frve working days after the Public 
Hearing and should be addressed to the Urban 
Forestry Program Director, Division of Forest 
Resources. P. O. Box 27687, Raleigh, NC 27611. 
Questions can be directed to the Program Director 
at 919-733-2162. 

Hiditor's Note: This rule has been filed as a 
temporary rule effective May 31, 1991, for a pe- 
riod of ISO days to expire on November 27. 1991. 

CHAPTER 9 - DIVISION OF FOREST 
RESOURCES 

SUBCHAPTER 9C - DIVISION PROGRAMS 

SECTION .1000 - URBAN AND COMMUNITY 
FORESTRY 



300 



6:6 NORTH CAROLINA REGISTER June 14, 1991 



PROPOSED RULES 



.1007 AMERICA THE BEALTIFLL GRANT 
PROGRAM 

The expanded Forestry' Title of the 1990 Farm 
Bill includes authorization of President Bush's 
America the Beautiful tree planting program. 
Congress appropriated funds for the Department 
of Agriculture, and these funds are allocated to 
the states through the U.S. Forest Service. The 
Di\ision allocates funds to communities and or- 
ganizations through matching, competitive 
grants. The following procedure is used to allo- 
cate grants: 

(1) A request for proposals, which advises of 
participation requirements, is advertised 
statewide through available means. Pro- 
posals are sent to the Urban Forestry Pro- 
gram Director, Division of Forest 
Resources, P. O. Box 27687, Raleigh, NC 
27611. 

(2) Funding criteria are established in the Re- 
quest for Proposals. /Vll proposals received 
are reviewed, evaluated and a priority rank- 
ing assigned based on a system developed 
by the Division with input from the North 
Carolina Urban Forestry Council and Ex- 
tension Forest Resources, and conforming 
to Urban and Community Forestry' federal 
assistance management guidelines. These 
guidelines are adopted by reference in ac- 
cordance with G.S. 1 SOB- 14(c). 

(3) Recommended grantees are forwarded to 
the Department for fmal approval. 

(4) Grants are awarded based on the highest 
rating in priority until funds are exhausted. 
In case of a tie between communities that 
causes the fund to be exceeded, a prorated 
cost share will be granted, not to exceed 
available funds. 

(5) Grant recipients are advised as to length of 
grant period and timetable to submit verifi- 
cation of compliance including the 50 per- 
cent match. If grant objectives are not met, 
the entire amount, or unused portion, must 
be returned. 

(6) The Division will establish a system to ac- 
count for work accomplished by grant re- 
cipients. Full use will be made of all Federal 
granting procedures. Complete documenta- 
tion of all costs related to the grant project 
must be provided to the Division by the 
termination date of the grant period. 

(7) Tree planting projects must meet minimum 
standards contained in the Forestry Hand- 
book, 2nd Edition, for the Society of Amer- 
ican Foresters, 1984. This is a standard 
reference contained in larger libraries and 
many professional offices. 



(8) Grant recipients must provide the Division 
with copies of landscape designs, street tree 
management plans, and other similar activ- 
ities as verification of such activities. 

(9) Communities are encouraged to use private 
consultants to help meet the needs for tech- 
nical assistance and to ensure professional 
standards are implemented on projects. 
Reasonable consultant costs can be included 
in the grant request. 

Statutory Authority G.S. 113-16; 143B-279.2. 
****************** 



i\ otice is hereby given in accordance with G.S. 
1 SOB- 12 that the North Carolina Wildlife Re- 
sources Commission intends to amend rules cited 
as ISA NCAC lOF .0324, .0330; 101 .0003 - 
.0005. 

1 he proposed effective date of this action is Oc- 
tober 1, 1991. 

1 he public hearing will be conducted at 10:00 
a.m. on July IS, 1991 at the Archdale Building, 
Room 386, 512 North Salisbury Street, Raleigh, 
NC 27604-1188. 

(_ omment Procedures: Interested persons may 
present their views either orally or in writing at the 
hearing. In addition, the record of hearing will 
be open for receipt of written comments from July 
1, 1991 to July 30, 1991. Such written comments 
must be delivered or mailed to the N.C. Wildlife 
Resources Commission, 5/2 N. Salisbury Street, 
Raleigh, NC 27604-1188. 

CHAPTER 10 - WILDLIFE RESOURCES AND 
WATER SAFETY 

SUBCHAPTER lOF - MOTORBOATS AND 
WATER SAFETY 

SECTION .0300 - LOCAL WATER SAEET^' 
REGULATIONS 

.0324 DAVIDSON COUNTY 

(a) Regulated Area. This Rule applies only to 
that- portion those portions of High Rock Uake 
and Beaver Dam Creek Cove located on Badin 
Lake which l»s lie within the boundaries of 
Davidson County. 

(b) Speed Limit Near Ramps. No person shall 
operate a vessel at greater than no-wake speed 
within 50 yards of any public boat launching 



6:6 NORTH CAROLINA REGISTER June 14, 1991 



301 



PROPOSED RULES 



ramp while on the waters of High Rock Lake in 
Davidson County. 

(c) Speed Limit in Mooring Areas. No person 
shall operate a vessel at greater than no-wake 
speed while within a marked mooring area es- 
tablished with the approval of the Executive Di- 
rector, or his representative, on the waters of 
High Rock Lake in Davidson County. 

(d) Speed Limit Near Bridges. No person shall 
operate a vessel at greater than no-wake speed 
within 50 yards of any highway bridge over the 
waters of High Rock Lake in Davidson County. 

(e) Speed Limit at Mouth of Cove. Those 
waters within 50 yards on either side of the 
mouth of Beaver Dam Creek Co\e located on 
Badin Lake as delineated bv appropnate markers. 

(t') fe-^ Restncted Swimming Areas. No person 
operating or responsible for the operation of a 
\'essel shaU permit it to enter any marked public 
swimming area established with the approval of 
the Executive Director, or his representative, on 
the waters of High Rock Lake in Davidson 
County. 

(g) (ft- Placement and .Maintenance of .Markers. 
The Board of Commissioners of Da\idson 
County IS designated a suitable agency for place- 
ment and maintenance of the markers imple- 
menting this Rule, subject to the approval of the 
Lnited States Coast Guard and the L nited States 
Army Corps of Engineers, if applicable. With 
regard to marking High Rock Lake, all of the 
supplementary standards listed in Rule .0301(g) 
of this Section shall apply. 

Staiuto/y Authority G.S. 75A-3; 75A-15. 

.0330 C.\RTERET COLNTY 

(a) Regulated /Vreas. This Rule applies to the 
following waters in Carteret County; 

(1) that portion of the Intracoastal Waterway 
within 200 feet on each side of the en- 
trance to Sea Gate Marina; 

(2) the waters of Money Island Slough be- 
ginning at the east end of Money Island 
near the /Vnchorage .Marina Basin and 
ending at the west end of Money Island 
where Brooks Avenue deadends at the 
slough; 

(3) the waters of Taylor Creek located within 
the territorial limits of the Town of 
Beaufort; 

(4) the waters of Pelletier Creek beginning at 
the entrance to Pelletier Creek at the 
Intracoastal Waterway and ending at L'.S. 
Higliway 70; 

(5) the waters of Bogue Sound in Morehead 
City between Sugar Loaf Island and the 
seawall on the south side of Evans, 



Shepard and Shackleford Streets and 
bounded on the east by the State Ports 
Authority and on the west by the eastern 
right-of-way margin of South 13th Street 
extended; 

(6) the waters of Gallant's Channel from the 
US 70 crossing over the Grayden Paul 
bridge to Taylor's Creek; 

(7) the waters of Cedar Island Bay and Harbor 
from U.S. 70 to Cedar Island Bay Chan- 
nel Light 8; 

(8) the w aters of Radio Island Creek. 

(b) Speed Limit. It is unlawful to operate a 
motorboat or \essel at a speed greater than no- 
wake speed while on the waters of the regulated 
areas designated in Paragraph (a) of this Rule. 

(c) Placement and Maintenance of Markers. 
The Board of Commissioners of Carteret 
County, with respect to the regulated areas des- 
ignated in Subparagraphs (1), (2), (4) and (6) of 
Paragraph (a) of this Rule, and the Board of 
Commissioners of the Town of Beaufort, with 
respect to the regulated area designated in Sub- 
paragraph (3) of Paragraph (a) of this Rule, and 
the Board of Commissioners of Morehead City, 
with respect to Subparagraph (5) of Paragraph 
(a) of this Rule, are designated as suitable agen- 
cies for placement and maintenance of the 
markers implementing this Rule, subject to the 
approval of the United States Coast Guard and 
the United States .Army Corps of Engineers. 

Statutory Authority G.S. 75A-3; 75A-I5. 

SLBCH,\PTER 101 - ENDANGERED AND 
THREATENED SPECIES 

.0003 ENDANGERED SPECIES LISTED 

(b) The following species of resident wUdLife 
are designated as state-listed endangered species: 
(3) Fish: 

No no Liotod At- This Time 

(A) Blotchside Logperch (Percina burtoni) 

(B) CutUps .Minnow (Exoglossum 
maxillingua) 

(C) Dusk\' Darter ( Percina sclera) 

(D) Orangefin .Madtom (Noturus gilberti) 

(E) Paddletlsh (Polvodon spatula) 

(E) Rust\side Sucker (.Moxostoma 

hamiltoni) 



(G) Stonecat (Noturus flaMJs) 

Statuton' Authority G.S. 113-134; 113-291.2; 
113-292; 113-333. 

.0004 THREATENED SPECIES LISTED 

(b) The following species of resident wildlife 
are designated as state-listed threatened species: 



302 



6:6 l\ORTH CAROLLVA REGISTER June 14, 1991 



PROPOSED RULES 



(3) Fish: 

Non e Listod A* Tfei* Tim e 

(A) American Brook Lamprey (Lampetra 
appendix) 

(B) Banded Sculpin (Cottus carolinae) 

(C) Carolina Pvgmy Sunfish (Elassoma 
boehlkei) 

(D) Freshwater Drum (Aplodinotus 
grunniens) 

(E) L.ogperch (Pcrcina caprodes) 

(F) Rosvface Chub (H\bopsis rubrifrons) 

(G) Sharphead Darter (Ftheostoma 



acuticeps) 
(H) Striped 

chrvsocephalus) 
(I) Waccamaw 

perlongum) 

Statutory Authority G.S. 
// 3-292; / 13-333. 



Shm 



er (Notropis 



Darter (Ftheostoma 



113-134; 113-291.2; 



.0005 SPECIAL CONCERN SPECIES LISTED 

The following species of resident wildlife are 
designated as state-listed special concern species: 
(3) Fish: 

Non e Liiitod A* Thio Timo 



(A) 

(£1 



oxvrhvnchus 



im 

01 
LIl 

(M} 

im 

LP) 

im 

(Si 
Hi 

(U 



Atlantic Sturgeon (Acipenser 

Bigeye Jumprock (Moxostoma 
ariommum) 

Bluefm Killifish (I ucania goodei) 
Blueside Darter (Ftheostoma jessiae) 
Bridle Shiner ( Notropis bifrenatus) 

Broadtail Madtom (Noturus rL sp.) 
(Lumber Riyer and its tributaries and 
Cape Fear River and its tributanes) 
Carolina Darter (Ftheostoma coUis) 

Carolina Madtom (Noturus furiosus) 
(Neuse Riyer and its tributaries) 
Highfm Carpsuckcr (Carpiodcs yclifer) 

Kanawha Minnow (Phenacobius 
tcrctulus) 



Lake Sturgeon (Acipenser fuhescens) 

Least Brook lamprey (Lampetra 
aepvptera) 

Least Killifish (Heterandria fonnosa) 

Longhead Darter ( Percina macrocephala) 

Mooneye (Hiodon tergisus) 

Mountain Madtom (Noturus eleutherus) 

Olive Darter ( Percina squamata) 

Pinewoods Darter (Ftheostoma mariae) 
River Carpsuckcr (Carpiodcs carpio) 

River Rcdhorsc (Moxostoma cannatum) 
(Pee Dee River and its tributanes) 

Riverweed Darter (t'theostoma 



(V) Rosyside Dace (Clinostomus funduloides 

ssp.) ( Little Tennessee River and its 

tributaries) 
(W) Sandhills Chub (Semotilus lumbee) 
(X) Sharpnose Darter ( Percina oxyrhvncha) 
(Y) Tennessee Snubnose Darter (Ftheostoma 

simoterum) 
(Z) Thinlip Chub (Hybopsis sp.) (Lumber 

River and its tributaries and Cape Fear 

River and its tributaries) 
(AA) Turquoise Darter (Ftheostoma 

inscriptum) 
(BB) Waccamaw Killifish (Fundulus 



waccamensis) 
(CC) Wounded 



Darter (Etheostoma 



vulneratum) 

(DD) YeUowfin Shiner (Notropis lutipinnis) 

( Savannah River and its tributaries and 

Little Tennessee River and its tributaries) 



Statutory Authority G.S. 
113-292; 113-333. 



113-134; 113-291.2; 



TITLE 16 - DEPARTMENT OF PUBLIC 
EDUCATION 

lyotice is hereby given in accordance with G.S. 
1 SOB- 12 that the State Board of Education in- 
tends to amend rule(s) cited as 16 NCAC 6B 
.0001 - .0002. 

J he proposed effective date of this action is No- 
vember I, 1991. 

1 he public hearing will be conducted at 10:00 
a.m. on July 15, 1991 at the Third Floor Confer- 
ence Room, Education Building, 116 
Edenton Street, Raleigh, NC 27603-1712. 



West 



Co 



podostemonc) 



omment Procedures: Any interested person 
may present views and comments either in writing 
prior to or at the hearing or orally at the hearing. 

CHAPTER 6 - ELEMENTARY AND 
SECONDARY EDUCATION 

SUBCHAPTER 6B - STUDENT 
TRANSPORTATION SYSTEM 

.0001 SCHOOL BUS DRIVERS 

(a) In order to be eUgible for employment by 
a LEA as a school bus driver, a person must 
meet the requirements of G.S. 20-1 1(a), 
20-2 18(a) and 115C-245. In addition, the person 
must: 



6:6 NORTH CAROLINA REGISTER June 14, 1991 



303 



PROPOSED RULES 



(Ij furnish the local superintendent with a 
health certificate which complies with 
G.S. 115C-323; 

(2) have both natural hands and both natural 
feet, with full use of arms, legs, hands and 
feet; 

(3) have at least 2040 vision in each eye, with 
or without corrective lens; and 

(4) successfully complete the prescribed 
course in school bus driver training. 

(b) A person may not serve as a school bus 
driver if the person: 

(1) has tampered with the governor or any 
wires and related parts thereof: 

(2) has willfully damaged and/or abused the 
bus; 

(3) has tampered with, removed or abused any 
of the safety equipment installed on the 
bus so as to make the equipment inoper- 
able or unusable; »f 

(4) has added to or improvised the standard 
equipment, which may jeopardize the 
safety of the pupil passengers; or 

(5) is in\ol\ed in a school bus accident as a 
result of driver negligence, as determined 
bv local re\iew. 

(c) A person who is disqualified under Para- 
graph (b) of this Rule or under LEA policy may 
apply through the principal after six months for 
reinstatement. If the principal approves the ap- 
plication, the person must again complete the 
entire training and certification procedure before 
being qualified to operate a school bus. 

Statutory Authority G.S. ll5C-240(c). 

.0002 SCHOOL BUS PASSENGERS 

(a) LEAs shall provide instruction in school 
bus safety to all children during the first five days 
of school and regularly thereafter during the 
school year. The LEAs shall include in the in- 
struction basic skills and knowledge vital to 
safety in school bus transportation. 

(b) LEAs shaU pro\'ide seating for all school 
bus passengers entitled to transportation accord- 
ing to the rated seating capacity for each specific 
bus. The LEAs shall not allow the number of 
passengers being transported to exceed the offi- 
cial rated capacity for the type and model bus 
being used. All riders must be seated before a 
bus mav lea\'e a stop: o\'ercrowding and standees 
are prohibited. 

(c) It: .As shall establish uniform procedures for 
Iransportine cliildrcn with special needs to in- 
clude: 

( 1 1 recommendation bv school-based com- 



mittee; 



(2) inclusion in the vsritten individualized ed- 
ucation plan; and 

(3) approval bv the transportation director 
and superintendent. 

Statutory Authority G.S. II5C-240(c). 

TITLE 21 - OCCUPATIONAL LICENSING 
BOARDS 



ly otice is hereby given in accordance with G.S. 
I50B-I2 that the North Carolina Board of Med- 
ical Examiners intends to amend rule(s) cited as 
21 NCAC 32H .0402 and .0406. 

1 he proposed effective date of this action is Oc- 
tober I, 1991. 

1 he public hearing will be conducted at 2:00 
p.m. on July 16, 1991 at the Division of Facility 
Services, Room 201, Council Building, 701 
Barbour Drive. Raleigh. NC 27603. 

(^ omment Procedures: Written comments con- 
cerning the ndes should be submitted as soon as 
possible, but no later than July 16, 1991 to Mr. 
Jackie Sheppard, 701 Barbour Drive, Raleigh, AC 
27603. Oral comments may be presented at the 
hearing. 

CH.APTER 32 - BOARD OF MEDICAL 
EXAMINERS 

SUBCHAPTER 32H - MOBILE INTENSIVE 
CARE 

SECTION .0400 - TRAINING AND 

PERFORM.VNCE OK MOBILE INTENSIVE 

CARE PERSONNEL 

.0402 EMERGENCY MEDICAL TECHNICI.\N- 
PARAMEDIC PERFORM.ANCE 

EMT-Ps tramed in approved training programs, 
certified by the Board of Medical Examiners to 
perform medical acts, and functioning in an ap- 
proved mobile intensive care program may do 
any of the following in accordance with the pro- 
tocols established by their sponsor hospital: 
(1) W'Tule at the scene of a medical emergency 
where the capability of continuous two-way 
voice communication, or the capability of 
continuous two-way voice communication 
supplemented by a telemetered 

electrocardiogram, is maintained with a 
physician or approved MICN located in the 
sponsor hospital, and upon order of such 
physician or MICN: 



304 



6:6 i\ORTH CAROLIN.4 REGISTER June 14, 1991 



PROPOSED RULES 



(1) 

(i) 

(k) 
(1) 



(a) establish an intravenous line in a periph- 
eral vein and administer any intravenous 
solution approved by the Board of Med- 
ical Examiners for use by EMT-Ps; 

(b) obtain blood for laboratory analysis; 

(c) administer parenterally, orally, 
sublingually, or topically any of the drugs 
approved by the Board of Medical Ex- 
aminers for use by EMT-Ps; 

(d) perform pulmonary ventilation by means 
of an esophageal obturator airway, 
esophageal gastric tube airway, 
pharyngeo -tracheal lumen airway, or 
endotracheal tube; 

(e) perform defibrillation or cardioversion; 

(f) use gas-powered or hand-powered 
nebulizers; 

(g) decompress a tension pneumothorax by 
use of a catheter-flutter-valve device; 

(h) use positive end expiratory pressure 
respirators; 

perform cricothyrotomy for relief of upper 
airway obstruction; 

perform gastric suction by intubation; 
perform urinary catheterization; aft4 

perform external cardiac pacing; and 
establish an intraosseous infusion line in 
appropriate patients under 60 months of 
age administer any intravenous fluid or 
drugs approved by the Board of Medical 
Examiners for use by EM I'-Ps. 

(2) When confronted with a pulseless non- 
breathing patient, perform cardiopulmonary 
resuscitation, defibrillation, pulmon;iry ven- 
tilation by means of an esophageal obturator 
airway, esophageal gastric tube airway, 
pharyngeo-tracheal lumen airway, or 
endotracheal tube, and administer appropri- 
ate cardiac drugs prior to contacting the 
sponsor hospital. 

(3) Establish an intravenous line in a peripheral 
vein and administer any intravenous sol- 
ution approved by the Board of Medical 
Examiners for use by EMT-Ps prior to 
contacting the sponsor hospital. If the 
Lntra\enous line is not successfully estab- 
lished after two attempts, the EMT-P must 
contact the sponsor hospital prior to making 
another attempt. 

Statutory Authority G.S. 143-514. 

.0406 EMERGENCY MED TECHNICIANS: 

ADVD INTERMEDIATE PERFORMANCE 

EMT-AIs trained in approved training pro- 
grams, certified by the Board of Medical Exam- 
iners to perform medical acts, and functioning in 
an approved mobile intensive care program may 



do any of the following in accordance with the 
protocols established by their spon.sor hospital: 
(1) While at the scene of a medical emergency 
where the capability of continuous two-way 
voice communication is maintained with a 
physician or approved MICN located in the 
sponsor hospital, and upon order of such 
physician or MICN: 

(a) establish an intravenous line in a periph- 
eral vein and administer any intravenous 
solution approved by the Board of Med- 
ical Examiners for use by EMT-AIs; 

(b) obtain blood for laboratory analysis; 

(c) administer parenterally, orally, 
sublingually, or topically any of the drugs 
approved by the Board of Medical Ex- 
aminers for use by EMT-AIs; 

(d) administer subcutaneously 1:1000 
epinephrine to treat systemic allergic re- 
actions; 

(e) perform pulmonary ventilation by means 
of an esophageal obturator airway, 
esophageal gastric tube airway, 
pharyngeo-tracheal lumen airway or 
endotracheal tube; 

(f) perform defibrillation; aft4 

(g) perform external cardiac pacing; and 

(h) establish an intraosseous infusion line in 
appropriate patients under 60 months of 
age and administer any mtravenous fluid 
or daigs approved by the Board of Med- 
ical lixaminers for use of EMT-Ps. 
with 



(2) 



When confronted with a pulseless non- 
breathing patient, perform cardiopulmonary 
resuscitation, defibrillation, pulmonary ven- 
tilation by means of an esophageal obturator 
airway, esophageal gastric tube airway, 
pharyngeo-tracheal lumen airway or 
endotracheal tube and administer appropri- 
ate cardiac drugs prior to contacting the 
sponsor hospital. 



Statutory Authority G.S. 143-514. 

****************** 

1\ otice is hereby given in accordance with G.S. 
150B-12 that the North Carolina Board of Nurs- 
ing intends to amend nde(s) cited as 21 NCAC 
36 .0211. .0223. .0401 and .0404. 

1 he proposed effective date of this action is Oc- 
tober 1, 1991. 

1 he public hearing will be conducted at 4:00 
p.m. on July 18, 1991 at the North Carolina Board 



6:6 NORTH CAROLINA REGISTER June 14, 1991 



305 



PROPOSED RULES 



of Nursing Office, 3724 National Drive, Suite 20 f 
Raleigh, NC 27602. 

K^omment Procedures: Any person wishing to 
present oral testimony relevant to proposed rules 
may register at the door before the hearing begins 
and present hearing officer with a written copy of 
testimony. Written statements may be directed 
frve days prior to the hearing date to the North 
Carolina Board of Nursing, P. O. Box 2129, 
Raleigh. NC 27602. 

CHAPTER 36 - BOARD OF NLRSING 
SECTION .0200 - LICENSURE 

.0211 E.XAMINATION 

(a) An applicant meets the educational quali- 
fications to write the examination for licensure to 
practice as a registered nurse by: 

( 1 ) graduating from a board approved nursing 
program designed to prepare a person for 
registered nurse licensure: 

(A) applicants graduating before July 1, 
1981 have no time restrictions on writing 
the examination; 

(B) applicants graduating after July 1, 1981 
must write the examination within three 
years of graduation. 

(2) graduating from a nursing program outside 
the United States or Canada that is de- 
signed to prepare graduates for the equiv- 
alent of Licensure as a registered nurse, and 
submitting the certificate issued by the 
Commission on Graduates of Foreign 
Nursing Schools as evidence of the re- 
quired educational qualifications. 

(b) An applicant meets the educational quali- 
fications to write the examination for licensure to 
practice as a hcensed practical nurse by: 

(1) graduating from a Board approved nursing 
program designed to prepare a person for 
practical nurse licensure: 

(A) applicants graduating before July 1, 
1981 have no time restrictions on writing 
the examination; and 

(B) applicants graduating after July 1, 1981 
must write the examination within three 
years of graduation. 

(2) graduating from a nursing program outside 
the United States or Canada that is de- 
signed to prepare graduates for the equiv- 
alent of licensure as a licensed practical 
nurse, and submitting evidence from a 
Board approved evaluation agency of the 
required educational qualifications and 
evidence of English proficiency from a 
Board appro\'ed agency or service; ef 



(3) graduating within the past three years from 
a Board approved nursing program de- 
signed to prepare graduates for registered 
nurse licensure, and failing to pass the ex- 
amination for registered nurse licensure; 
or 

(4) completing a Board approved course of 
study such as offered by the U.S. Nav\' for 
Hospital Corpsman. Apphcants must 
write the examination within three years 
of completing active dutv/selected reserve 
duty as a military Hospital Corpsman. 
The Board approved course of study in- 
cludes: 

(A) a course equivalent to the U.S. Na\'y 
Hospital Corpsman Basic (Class "A") 
course; 

(B) Advancement Examination for Navy 
Hospital Corpsman Third Class or an 
equivalent examination; 

(C) coUege level human lifespan .growth and 
development course; and 

(D) a nursing course provided by the Na\^ 
or another approved agency that includes 
maternal-child nursing theors' and clinical, 
the legal role of the LPN, the nursing 
process, and nutrition. 

(c) An application to the Board of Nursing for 
examination shall be submitted at least 60 days 
prior to the examination. In instances where the 
60 day deadline cannot be met, the Board may 
grant an exception upon request from the direc- 
tor of the nursing educational program in which 
the applicant is enroUed or from the appUcant. 
;'Vn admission card with specific information as 
to time, date, and place of examination wiU be 
mailed to the applicant approximately 14 days 
prior to the date of the examination. 

(d) Those applicants who qualify for examina- 
tion in accordance with G.S. 90-171.29 wiU be 
issued a Status A temporary license as provided 
for in G.S. 90-171.33. A temporar>' license may 
be withheld in accordance with G.S. 90-171.37. 

(e) The examinations for licensure developed 
by the National Council of State Boards of 
Nursing, Inc. shall be the examinations for 
hcensure as a registered nurse or as a Licensed 
practical nurse in North Carolina. 

(1) These examinations shall be administered 
in accordance with the contract between 
the Board of Nursing and the National 
Council of State Boards of Nursing, Inc. 

(2) The examination for licensure as a regis- 
tered nurse shall be administered in Eeb- 
ruary and July on dates determined by the 
National Council of State Boards of 
Nursing, Inc. 



306 



6:6 NORTH CAROLINA REGISTER June 14, 1991 



PROPOSED RULES 



(3) The examination for licensure as a licensed 
practical nurse shall be administered in 
April and October on dates determined 
by the National Council of State Boards 
of Nursing, Inc. 

(4) Scores on the examination shall be re- 
ported, by mail only, to the individual 
applicant and to the director of the pro- 
gram from which the applicant was grad- 
uated. Aggregate results from the 
exaniination(s) may be published by the 
Board. 

(5) The passing standard score for each of the 
five tests comprising the examination for 
registered nurse licensure, up to and in- 
cluding the February 1982 examination is 
350. For the examination offered in July 
1982 and through July 1988, the passing 
score is 1600. Beginning February 1989, 
the passing score for registered nurse 
licensure is reported as "PASS". 

(6) The passing score for the examination for 
practical nurse licensure, up to and in- 
cluding the April 1988 is 350. Beginning 
October 1988, the passing score for prac- 
tical nurse licensure is reported as 
"PASS". 

(f) Applicants who meet the qualifications for 
licensure will be issued a certificate of registration 
and a license to practice nursing for the remain- 
der of the year. 

(g) Applicants for North Carolina license may 
take the examination for licensure developed by 
the National Council of State Boards of Nursing, 
Inc. in another jurisdiction of the United States, 
providing: 

(1) the Board of Nursing in that jurisdiction 
consents to proctor the applicant; 

(2) arrangements are made through the North 
Carolina Board of Nursing sufficiently in 
advance of the examination date to meet 
application requirements in both jurisdic- 
tions; and 

(3) the applicant pays any service fee charged 
by the proctoring Board. 

(h) The North Carolina Board of Nursing may 
proctor an examination upon request of another 
state Board of Nursing at the regularly scheduled 
examination sessions if space is available. The 
applicant shall submit a service fee for such 
proctoring. 

Statutory Authority G.S. 90-171.23(15); 
90-171.29: 90-171.30. 

.0223 CONTINUING EDUCATION PROGRAMS 

(a) Definitions. 



(1) Continuing education in nursing is a non- 
degree oriented, planned, organized learn- 
ing experience taken after completion of 
a basic nursing program. In addition, a 
course(s) or component(s) of a course(s) 
within an academic degree-oriented pro- 
gram which prepares a nurse to perform 
advanced skills but does not result in the 
awarding of a degree from a North 
Carolina nursing program may be consid- 
ered continuing education as defmed in 
Paragraph (a)(3) of this Rule. 

(2) Programs offering an educational experi- 
ence designed to enhance the practice of 
nursing are those which include one or 
more of the following: 

(A) enrichment of knowledge; 

(B) development or change of attitudes; or 

(C) acquisition or improvement of skills. 

(3) Programs are considered to teach nurses 
advanced skills when: 

(A) the skill taught is not generally included 
in the basic educational preparation of the 
nurse; and 

(B) the period of instruction is sufficient to 
assess or provide necessary knowledge 
from the physical, biological, behavioral 
and social sciences, and includes super- 
vised chnical practice to ensure that the 
nurse is able to practice the skill safely and 
properly. 

(4) Student status may be granted to an indi- 
vidual who does not hold a North 
Carolina nursing license but who partic- 
ipates in a clinical component of a con- 
tinuing education programs in North 
Carolina when: 

(A) the individual possesses a current un- 
encumbered license to practice nursing in 
a jurisdiction other than North Carolina; 

(B) the course offering is approved by Ae 
Board; meets one of the following criteria: 
(i) is part of an academic de.gree-granting 

nursmg program which has approval in 
a jurisdiction other than North 
Carolina or national accreditation; or 

(ii) is offered through an in-state aca- 
demic institution which has Board ap- 
proval for basic nursing education 
pro,gram(s) or national accreditation for 
ad\'anced nursing education pro,gram(s); 
or 

(iii) is approved by the Board as a con- 
tinuing education offering, thereby 
meeting the criteria as defined in Para- 
graph (b) of this Rule. 

(C) the individual receives supervision by a 
qualified preceptor or member of the fac- 



6:6 NORTH CAROLINA REGISTER June 14, 1991 



307 



PROPOSED RULES 



ulty who has a valid license to practice as 
a registered nurse in North Carolina; 

(D) the course of instruction has a specified 
period of time not exceeding twelve 
months; 

(E) the individual is not employed in nurs- 
ing practice in North Carolina during 
participation in the program; and 

(F) the Board has been given advance no- 
tice of the name of each student, the ju- 
risdiction in which the student is licensed, 
the license number, and the expiration 
date. 

(b) Criteria for voluntary approval of continu- 
ing education programs in nursing. 

(1) Planrung the educational program shall 
include: 

(A) definition of learner population; for 
example, registered nurse, licensed practi- 
cal nurse, or both; 

(B) identification of characteristics of the 
learner; for example, clinical area of prac- 
tice, place of employment, and position; 
and 

(C) assessment of needs of the learner; for 
example, specific requests from individ- 
uals or employers, pre-tests, or audits of 
patient records. 

(2) Objectives shall: 

(A) be measurable and stated in behavioral 
terms; 

(B) reflect the needs of the learners; 

(C) state desired outcomes; 

(D) ser\e as criteria for the selection of 
content, learning experiences and evalu- 
ation of achievement; 

(E) be achievable within the time allotted; 
and 

(F) be applicable to nursing. 

(3) Content shall: 

(A) relate to objectives; 

(B) reflect input by qualified faculty; and 

(C) contain learning experiences appropri- 
ate to objectives. 

(4) Teaching methodologies shall: 

(A) utilize pertinent educational principles; 

(B) provide adequate time for each learning 
activity; and 

(C) include sharing objectives with partic- 
ipants. 

(5) Resources shall include: 

(A) faculty who have knowledge and expe- 
rience necessary to assist the learner to 
meet the program objectives and are in 
sufficient number not to exceed a faculty- 
learner ratio in a clinical practicum of 
1:10. If higher ratios are desired, sufficient 
justification must be provided; and 



(B) physical facilities which ensure that ad- 
equate and appropriate equipment and 
space are available and appropriate clin- 
ical resources are available. 

(6) Evaluation must be conducted: 

(A) by the provider to assess the partic- 
ipant's achievement of program objectives 
and content and will be documented; and 

(B) by the learner in order to assess the 
program and resources. 

(7) Records shall be maintained by the pro- 
vider for a period of three years and shall 
include a summary of program evalu- 
ations, roster of participants, and course 
outline. The provider shall award a cer- 
tificate to each participant who success- 
fully completes the program. 

(c) Approval process. 

(1) The provider shall: 

(A) make application on forms provided 
by the Board no less than 60 days prior 
to the proposed enrollment date; 

(B) present written documentation as spec- 
ified m (b)(1) through (b)(7) of this Rule; 
and ' 

(C) notify the Board of any significant 
changes relative to (b)(1) through (b)(7) 
of this Rule; for example, changes in fac- 
ulty or total program hours. 

(2) Approval is granted for a two year period. 
Any request to offer an approved program 
by anyone other than the original provider 
must be made to the North Carolina 
Board of Nursing. 

(3) If a course is not approved, the provider 
may appeal in writmg for reconsideration 
within 30 days after notification of the 
disapproval. If the course is not approved 
upon reconsideration, the provider may 
request a hearing at the next regularly 
scheduled meeting of the Board. 

(4) Site visits may be made by the Board as 
deemed appropriate to determine compli- 
ance with the criteria as specified in Para- 
graph (b) of this Rule. 

(5) The Board shall withdraw approval from 
a provider if the provider does not main- 
tain the quality of the offering to the sat- 
isfaction of the Board or if there is 
misrepresentation of facts within the ap- 
plication for approval. 

(6) Approval of continuing education pro- 
grams will be included in published re- 
ports of Board actions. A list of approved 
programs will be maintained in the 
Board's tile. 



M)S 



6:6 !\'ORTH CAROLINA REGISTER June 14, 1991 



PROPOSED RULES 



Statutory 
90-171.42. 



Authority G.S. 90- 17 1. 23(b); 



SFXTION .0400 - LNLICENSED PERSONNEL: 
NLRSE AIDES 

.0401 ROLES OF LNLICENSED PERSONNEL 

(a) Defmitions. As used in Section .0400: 

( 1 ) "Nursing care activities" means acti\ilies 
performed bv unlicensed personnel which 
are delegated bv licensed nurses in ac- 
cordance with Paragraphs (b) and (c) of 
this Rule. 

(2) "Patient care activities" means activities 
perfonned bv unlicensed personnel when 
health care needs are incidental to the 
personal care required and are not deleg- 
ated bv a licensed nurse. 

(b) (a) The hcensed nurse, Registered and 
Practical, may delegate nursing care activities to 
unlicensed personnel, regardless of title, that are 
appropriate to the level of knowledge and skill 
of the unlicensed personnel and are within the 
legal scope of practice for unlicensed personnel. 
The licensed practical nurse assumes responsibil- 
ity for delegating to and supervising unlicensed 
personnel m situations in which a registered 
nurse or other individual authorized by law is 
available for direct participation in client care as 
necessary to coordinate, assess, plan, implement, 
and e\'aluate that care. The registered nurse, or 
the licensed practical nurse, is responsible for 
supervision of the nursing care acti\ities of the 
unlicensed personnel and maintains legal ac- 
countability and responsibility for nursing care 
given by all personnel to whom that care is de- 
legated. 

(c) (44 Those acti\itics which may be delegated 
to unhcensed personnel are detcnnined by the 
following variables: 



(1) 

(2) 
(3) 



(4) 



knowledge and skills of the unlicensed 
personnel, which include both basic edu- 
cational preparation (Level I) and training 
added through additional educational 
preparation and training (Level II); 
\erification of clinical competence of the 
unlicensed personnel; 

stability of the client's condition which 
invohes predictability, absence of risk of 
complication, and rate of change, and 
thereby excludes delegation of nursing 
care activities which require nursing as- 
sessment or judgment by a licensed nurse 
during the pertbrmance of the activity; 
the variables in each service setting whrch 
include but are not Umited to: 



(A) the complexity and frequency of nurs- 
ing care needed by a given client popu- 
lation; 

(B) the proximity of clients to staff; 

(C) the number and qualifications of staff; 

(D) the accessible resources; and 

(E) established policies, procedures, prac- 
tices, and channels of communication 
which lend support to the types of nursing 
activities being delegated, or not delegated, 
to unlicensed personnel. 

Statutoty .'iuthorltv G.S. 90-171.20 (2) (4) 
(7)d.. e.. g.: 90-171.43 (4); 90-171.55: 42 
U.S.C.S. l395i-3 (1987). 

.0404 REGISTRATION 

(a) The Board of Nursing shall maintain a list 
of nurse aides in the Nurse Aide Registry who 
are qualified in accordance with the requirements 
of Rule .0403 of this Section. 

(b) All nurse aides, regardless of working title, 
employed or assigned in a scnice agency for the 
purpose of providing nursing care activities shall, 
upon successful completion of a nurse aide 
training and competency evaluation program or 
a nurse aide competency evaluation program, 
submit an application to the Board of Nursing 
for placement on the Nurse Aide Registr>'. The 
application shall be submitted with an annual fee. 
limployers are encouraged, whenever possible, to 
submit the fee for their nurse aides. The Board 
will establish a process which facilitates the pay- 
ment of the fee by the employer. 

(c) A nurse aide employed as of January I, 
1990 in a nursing facility or home health agency, 
as mandated by 42 U.S.C.S. l395i-3 (1987J^ shall 
successfully complete a Board of Nursing ap- 
proved training and competency evaluation pro- 
gram or a competency evaluation program prior 
to submitting an application to the Board of 
Nursing for placement on the Nurse Aide Regis- 
try- 

(d) A nurse aide employed in a service agency 
as of January' 1, 1991 shall successfully complete 
a Board of Nursing approved training and com- 
petency evaluation program or an appro\'ed 
competency evaluation program prior to sub- 
mitting an application to the Board of Nursing 
for placement on the Nurse Aide Registrv'. 

(e) Each nurse aide who has performed nursing 
care acti\itics for monetary' compensation during 
the preceding 24 months shall renew hi; , h e r H*e- 
i ' jtration e» » bionniul ba >. i > ' . the listing biemiiaUv 
on forms provided by the Board. 

(f) A nurse aide w ho has not performed nursing 
care acti\ities but has pertbrmed patient care ac- 
ti\itics for monetary compensation dunng the 



6:6 NORTH CAROLIN.4 REGISTER June 14, 1991 



309 



PROPOSED RULES 



preceding 24 months may renew the listing after 
successful completion of a Nurse Aide I Compe- 
tency l-"yaluation Program. 

(g) <rh 'Vny nurse aide who has had a continuous 
period of 24 months during \yhich no nursing 
care activities or patient care activities were per- 
formed for monetary compensation, shall suc- 
cessfully complete a new training and 
competency evaluation program and submit an 
application to be placed on the Nurse Aide Reg- 
istry. 

(h) fs-^ The Division of F-acility Ser^'ices, or any 
other employing agency, is responsible for inves- 
tigating complaints related to nurse aides. If, 
following a timely review and investigation of 
allegations of client neglect or abuse or misap- 
propriation of cUcnt property, the agency deter- 
mines that the nurse aide has neglected or abused 
the cUent or misappropriated client property, the 
agency shall notify the Board of Nursing within 
ten business days. The investigating agency's 
foldings indicating a nurse aide has neglected or 
abused a client or misappropriated client prop- 
erty shall be a\ailable to the public upon inquiry 
to the Nurse /Vide Registry. /Vny information 
disclosed concerning such a finding shall include 
the fmdings and a statement whether the indi- 
vidual has disputed the findings. 

Statutoiy Authority G.S. 90-171.20 (2) (4) 
(7)d., e.. ?.,• 90-171.43 (4); 90-171.55; 42 
U.S.C.S. J395i-3 (I9S7J. 

TITLE 26 - OFFICE OF ADMIMSTRATIVE 
HEARINGS 

lyotice is hereby gi\-en in accordance with G.S. 
150B-I2 that the Office of Administratix'e 
Hearings intends to amend nde(s) cited as 26 
\CAC3 .0002 - .0004, .0009, .0013, .0019, .0026, 
and .0030. 

1 he proposed effective date of this action is Oc- 
tober I. 1991. 

1 he public hearing will be conducted at 10:00 
a.m. on July IS. 1991 at Hearing Room jtl , Lee 
House. 422 Sorth Blount Street. Raleigh, A'C. 

V_ omment Procedures: Comments may be sub- 
mitted in writing or in person at the public hearing 
or in writing prior to July IS. 1991 . to Elaine R. 
Steinbeck. APA Coordinator, P. O. Drawer 
27447. Raleigh. NC 276/ 1-7447. 

CH.\F'TKK 3 - IIE.ARINGS Dl\ ISION 



.0002 DEFINITIONS AND CONSTRUCTION 

(a) The definitions contained in G.S. 150B-2 
are incorporated herein by reference. In addition, 
the foUowing definitions apply: 

(1) "Chief Administrative Law Judge" means 
the person appointed according to G.S. 
7A-752. 

(2) "File or Filing" means to place the paper 
or item to be filed into the care and cus- 
tody of the chief hearings clerk of the Of- 
fice of Administrative Hearings, and 
acceptance thereof by him, except that the 
administrative law judge may permit the 
papers to be filed with him in which event 
the administrative law judge shall note 
thereon the filing date. All documents 
foed with the Office of Administrative 
Flearings, except exhibits, shall be in du- 
phcate in letter size 8 1/2" by 11". 

(3) "Service or Serve" means personal delivery 
or, unless otherwise provided by law or 
rule, deUvery by first class United States 
Postal Service mail or a Licensed overnight 
express mail service, postage prepaid and 
addressed to th« party to the person to be 
served at his or her last known address. 
A certificate of service by the person 
making the service shall be appended to 
every document requiring service under 
these Rules. Service by mail or hcensed 
overnight express mail is complete upon 
placing the item to be served, enclosed in 
a wrapper addressed to the person to be 
served, in an official depository of the 
United States Postal Service or upon de- 
livery, postage prepaid and wrapped in a 
wrapper addressed to the person to be 
ser\'ed, to an agent of the overnight ex- 
press mail service. 

(b) The rules of statutory construction con- 
tained in Chapter 12 of the General Statutes shall 
be applied in the construction of these Rules. 

Statutory Authority G.S. 7A-752; 1508-11: 
I50B-23. 

.0003 COMMENCEMENT OF CONTESTED 
CASE: NOTICE 

(a) A contested case in the Office of Adminis- 
trative Hearings is commenced by the filing of a 
petition as required by G.S. 150B-23. togothor 
with a Cfrtificato e*f SoP i ico octablishing r . ijnico 
e4" a copy ef (4*<* pt'tition ©ft att other purti e r f . 

(b) \\'ithin five days of filing a petition found 
f ' UfTiciont hf \^ OlTice »f iVdminiL . trati' i O 
I loaringo to commence a contested case, the 
Chief Administrative Law Judge shall assign an 
administrative law judge to the case. Within ten 



^10 



6:6 NORTH CAROLINA REGISTER June 14, 1 99 1 



PROPOSED RULES 



days of the filing of a petition commencing a 
contested case, the chief hearings clerk of the 
Office of Administrative Hearings shall serve a 
Notice of Contested Case Filing and Assignment 
upon all who are parties to the dispute. The 
notice shall contain the following: 

(1) Name of case and date of filing; 

(2) Name, address, and telephone number of 
the administrative law judge; and 

(4) Copy »f petition te- advoroo party if a©^ 
provioualy ooP i 'od by- potitionor; »ft4 

(4^ £3} A request that the party send within left 
30 days a copy of the document consti- 
tuting the agency -action that caused the 
fding of the petition. 

Statutory Authority G.S. I50B-II: 1508-23; 
I50B-33. 

.0004 ORDER FOR PREHEARING 
ST.VTEMENTS 

The administrative law judge may ser\'e all par- 
ties with an Order for Prehearing Statements to- 
gether with, or after service of, the Notice of 
Contested Case Filing and Assignment. The 
parties thus served shall, within 30 days of ser- 
vice, fde the requested statements setting out the 
party's present position on the following: 

(1) The nature of the proceeding and the issues 
to be resolved; 

(2) A brief statement of the facts and reasons 
supporting the party's position on each 
matter in dispute; 

f^ A li^ »f factr . , conclui . ion ' j, ef e xhibits te- 
' . ' . hich th« party ¥.^ stipulat e ; 

(4) (3) A list of proposed witnesses with a brief 
description of his or her proposed testimony; 

f^ (4) A description of what discover}', if any, 
the party will seek to conduct prior to the 
contested case hearing and an estimate of the 
time needed to complete discovery; 

{4rf ^^Tlothor the party Vr414 ord e r a transcript; 

(^ (5) Venue considerations; aft4 

(6) Estimation of length of the hearing: 

(7) The name, address, and telephone number 
of the party's attomcv, if an\ ; and 

(8) Other special matters. 

Statutory Authority G.S. I SOB- 33. 

.0009 NOTICE OF HEARING 

(*) 44w» OfficQ »f iXdministrati' i O H e arings shall 
^ve tfee partioo ift a contL ' stod «»*? a Notic e ef 
Hearmg aet- k*» than 44 days boforo t4*e hearing, 
which noticu shall contain tfee follo>ving: 

f4-} Date tim e , pluctv aft4 nature ef tte 
hearing; 



f3) Name, addross, aH4 t e lephone number &f 
the presiding administrative law judge; 

in' . 'olved; 

I'll t^s sttT^tt crrtTT V'tulrr ?TcrTi?TTTt?rTT tTx rTTT? rrit^T^cii 

allegations »f issues te- be determined; 

f^ Notification ©f tfee right &f a party te 
repres e nt hiinuolf, te- be represented by- aa 
attomoy, ef t© be roprosentod by a person 
authoris e d t© de- se- by- specific State Stat 
Hte ©f federal tewf 

f6^ A citation t© the rules ©f tbe Office ©f 
Administrative Hearings pertaining t© 
contested ease hearings afi4 t© tbe con 
tested ease provisions ©f G.S. Chapter 
150B aft4 notification ©f how copies may 
be obtained; 

(^ A brief description ©f tfee procedure t© 
be followed at- t4ie h e aring; 

(^ A statement advising the parties t© bring 
t© tbe hearing ait documents, records, aft4 
witnesses they need t© support their posi 
tions; 

f^ A statement tbat- subpoenas may- be 
available t© compel tbe attendance ©f 

referring tbe parties t© Rule .0013 ©f this 
Chapter relating t© subpoenas; 

f4-CB- A statement advising the parties Aat a 
notice ©f representation, containing the 
name ©f counsel ©f other representatives, 
if aftVr must be 6}e4 with tbe administra 
tive law- judge svithin ten days ©f tbe date 
©f sers'ice ©f tbe Notice ©f Hearing: afi4 

fW-} A statement advising tbe parties tbat- feil- 

twe t© appear at- tbe hearing may result i» 

tbe allegations »f tbe Notice ©f I tearing 

being taken as true, ©f the issues set- ©«t- 

being deemed proved, aft4 a statement 

v i hich explains the possible r e sults ©f t^te 

allegations being taken as tftje ©f tbe is- 

&«es deemed proved. 
(U \ T h n f^fv,...^ ,^f \ .1^;.,:. »,..♦:. ..^ ir,,..^ .u.,ii 

^ve notice t© all parties vsith a Notice ©f 1 learing 
either personally ©f by certified mail ©Ft if those 
methods afe unavailing, m accordance with G.S. 
li\ 1. Rrttle - UjXl). ift- tbe event tbat- notice is 
accomplished by certified mail, tbe deli' i 'ep/ date 
©ft tbe return receipt shall be the date ©f notice. 
The content and the manner of ser\-ice of the 
Notice of Hearing shall be as specified in G.S. 
150B-23 (b) and (c). 

Statutory Authority G.S. I50B-23. 

.0013 SUBPOENAS 

(a) Requests f©f Subpoenas for the attendance 
and testimony of witnesses or for the production 



6:6 NORTH CAROLINA REGISTER June 14. 1991 



311 



PROPOSED RULES 



of documents, either at a hearing or for the pur- 
poses of discoverv, shall be issued in accordance 
with G.S. 15QB-'27 and G.S. lA-1, Rule 45, 
mudo m v i Titing te tbe adminuUrativo law judgo, 
shall identify aftv documcnto c . ought with 
spt ' cificity. \\\iA\ include i^ fatt name fctft4 home 
ef buL i inoLVi address ef aW persons \^ be 
subpoenaed aftdr if 1 en own, y*e dat e , time. afi4 
place fof respondmg te tbe subpoena. L pon fe- 
coi' i ing a ' ■ ■ I 'ritten request &f upon bt« own f«e- 
tion. At» admimstrative k*vf judge shall i '. sue tbe 
requested subpoenas. 

(b) A subpoena shall be ser\'ed in the manner 
provided bv Ae Rules »f Ci'ril Procedur e , G.S. 
150B-27 and G.S. lA-l, Rule 45, The cost of 
ser\'ice, fees, and expenses of any witnesses 
subpoenaed shall be paid by the party at whose 
request the witness appears. A party seeking an 
order imposing sanctions for failure to comply 
with any subpoena issued under this Rule must 
prove proper service of the subpoena. 

(c) Objections to subpoenas shall be heard in 
accordcmce with G. S_ 15nB-27 and G, S_ lA-1, 
Rule 45. Objection te- Subpoena. 

(4f L pon receipt e^ a ' . vntten request f»f (4*e 
revocation »f a subpoena, t4*e administra 
Wr^ Ittw judge shall schedule aft4 conduct 
a heanng »» At* motion. 44^ adminio 

■f «- . I t 1 1 • .-> I ■ . ^ t - « 1 1 , -1 .-■ . t ..■ W ■! 1 I n 1 1 ■ ■ , ■ Vi f I-. 1-1 ^tiW«-^.-t.-ij~t'-» 
1 1 T.1 1 I T TJ" in * ' I I. lU _ V- TTTTTTT \J LIU. JI I 1. 1 11. ^' LI I. ' L' '^' V^ I lU 

if he finds t4*at it- i*i insalid according te- 
Iftw ©ft grounds ef relevancy, la€4r ef 
particularity, ©f f»f afty other legal insuf 
ficiency. 
(4) \vt At* ea--* »f obj e ctions te a subpoena, 
which objections de- fte+ require re' i oca 
tion. Ae administrative law- judge may 
modify Ae subpoena if ri- » unreasonable 
©f opprest ' ise. talcing m+e- account the »- 
sues, costs, ef other burdens ef^ compli 
ance when compared with (4»e value ef Ae 
testimony ©f evidence sought f»f Ae 
presentation ef Ae party's case. aft4 
v .' hether »f fiet- there are alternative 
methods »f obtaining Ae desired testi 
mony ef evidence. 

Stalutoty Authority G.S. /50B-27; i50B-33. 

.0019 RIGHTS AND RESPONSIBILITIES 
OF I'.\RTIF.S 

(a) .All parties shall have the right to present 
evidence, rebuttal testimony, and argument with 
respect to the issues of law and policy, and to 
cross-examine witnesses, including the author of 
a document prepared by, on behalf of, or for use 
of the agency and offered in evidence. 

(b) A party shall have all evidence to be pre- 
sented, both oral and written, available on the 



date for hearing. Requests for subpoenas, depo- 
sitions, or continuances shall be made within a 
reasonable time after their need becomes evident 
to the requesting party. In cases when the hear- 
ing time is expected to exceed one day, the parties 
shall be prepared to present their evidence at the 
date and time ordered by the administrative law 
judge or agreed upon at a prehearing conference. 

(c) The administrative law judge shall send 
copies of all orders or decisions to all parties si- 
multaneously. Any party sending a letter, ex- 
hibit, bnef memorandum, or other document to 
the administrative law judge shall simultaneously 
send a copy to all other parties. 

(d) All parties ha\'e the continuing responsibil- 
ity to notifv the Office of Administrative 
Hearings of their current address and telephone 
number. 

(c) {4i A party need not be represented by an 
attorney. If a party has notified other parties of 
that party's representation by an attorney, all 
communications shall be directed to that attor- 
ney. 

(J) fei With the approval of the administrative 
law judge, any person may offer testimony or 
other esidence relevant to the case. Any non- 
party offering testimony or other evidence may 
be questioned by parties to the case and by the 
administrative law judge. 

(g) Prior to issuing a recommended decision, 
the administratne law judge may order an\ party 
to submit proposed lindings of fact and written 
arguments. 

Statuton- ,Uiihority G.S. I50B-25; I50B-33. 

.0026 ADMIMSTRATI\E LAW JLDGE'S 
RECOMMENDED DECISION 

(a) An administrative law judge shall issue a 
recommended decision or order in a contested 
case within 45 days after the later of the date the 
administrative law judge receives aH- any pro- 
posed fmdings of fact and written arguments 
submitted by the parties and the date the con- 
tested case hearing ends. The administrative law 
judge shall ser\'e a copy of the decision on each 
party. WTien an administrative law judge issues 
a recommended decision, the Office of Adminis- 
trative Hearings shall promptly forward serve a 
copy of the official record m Ae e*?e te- on the 
agency making the fmal decision bv hand delnePv' 
or certified mail. 

(b) A recommended decision shall be based 
exclusively on: 

(1) competent evidence and arguments pre- 
sented during the hearing and made a part 
of the otTicial record; 

(2) stipulations of fact; 



n2 



6:6 .\ORTH CAROLINA REGISTER June 14, 1 991 



PROPOSED RULES 



(3) matters officially noticed; 

(4) any proposed findings of fact and written 

arguments submitted by the parties under 
Gr^ 150B 3 ' 1(b) Paragraph (g} of Rule 
.0019; and 

(5) other items in the official record that are 
not excluded by G.S. 150B-29(b). 

(c) A recommended decision shall fully dispose 
of all issues required to resolve the case and shall 
contain: 

(1) an appropriate caption; 

(2) the appearances of the parties; 

(3) a statement of the issues; 

(4) references to specific statutes or rules at 
issue; 

(5) findings of fact; 

(6) conclusions of law based on the fmdings 
of fact and applicable constitutional prin- 
ciples, statutes, rules, or federal regu- 
lations; 

(7) in the discretion of the administrative law 
judge, a memorandum giving reasons for 
his fmdings of fact and conclusions of law; 

(8) a statement identifying the agency that will 
make the fmal decision; and 



(9) a statement that each party has the right 
to fJe exceptions to the recommended 
decision with the agency making the fmal 
decision and has the right to present writ- 
ten arguments on the decision to the 
agency making the fmal decision, 
(d) For good cause shown, the Chief Adminis- 
trative Law Judge may extend the 45-day time 
limit for issuing a recommended decision. An 
administrative law judge who needs an extension 
must submit a request for extension to the Chief 
Administrative Law Judge before the 45-day pe- 
riod has expired. 

Statutory Authority G. S. ISOB-34. 

.0030 HN.\L DECISIONS IN CONTESTED 
CASES 

A copy of a fmal decision issued by an admin- 
istrative law judge shall be served on each party 
in accordance with G. S^ 150B-36. Son'ico shall 
be 



» A« mannor 

.0009(b). 



opocifiod ift 34 NCAC ^ 



Statutory Authority G.S. 150B-36. 



6:6 NORTH CAROLINA REGISTER June 14. 1991 



313 



FINAL RULES 



1 he List of Rules Codified is a listing of rules that were filed to be effective in the month indicated. 

l\ules filed for publication in the XCAC may not be identical to the proposed text published pre- 
viously in the Register. Rules filed with changes are noted with ** Amended, ** Adopted. Please 
contact this office if you have any questions. 

Adopted rules filed by the Departments of Correction, Re\-enue and Transportation are published 
in this section. These departments are not subject to the provisions ofG.S. I50B. Article 2 requiring 
publication in the S.C. Register of proposed rules. 

LJ pon request from the adopting agency, the text of rules will be published in this section. 

lunctuation, typographical and technical changes to rules are incorporated into the List of Rules 
Codified and are noted as * Correction. These changes do not change the effective date of the rule. 



NORTH CAROLINA ADMINISTRATIVE CODE 

LIST OF RULES CODIFIED 

JLN»E 1991 



AGENCY 


ACTION TAKEN 


DFPARTMENT OF AGRICITTLRE 


2 NCAC 4SA 


.1110 Amended, 


4SC 


.0001 Amended 




.0002 ** .^mended 




.0004 Amended 




.0005 *♦ Amended 




.0006 Amended 




.0018 /Vmended 




.0023 Amended 


48F 


.0028 Adopted 
.0304 Amended 




.0306 ** Adopted 


DFRAKIMFNT OF FCONOMIC AND COMMl NFFV DF\ FLOPMFNT 


4 NCAC 3G 


.0203 ** Adopted 


6C 
19R 


.0502 *♦ Adopted 

.0601 ** Adopted 

.0408 Adopted 

.0100 - .0600 Transferred and Recodified to 




10 NCAC 51F .0100- .0600 




EfT. Mav 1, 1991. 


DFPARTMFNT OF CORRFCTION 


5 NCAC 2F 


.2502 - .2503 Amended 


OFFICES OF THE GO\ER\OR/IIEl TENANT GO\ ERNOR 



n4 6:6 NORTH CAROLINA REGISTER June 14, 1991 



FINAL RULES 



9 NCAC 2B Executive Order Number 139 

Eff. March 28, 1991 
Executive Order Number 140 
Eff. April 22, 1991 
Executive Order Number 141 
Eff. April 17, 1991 

DEPARTMENT OF HUMAN RESOURCES 



NCAC 



3C 



3H 

3J 

3T 



39D 



44B 



51F 



.0301 

.0305 

.0913 

.0914- 

.1107 

.2401 

.0102 

.0202 - 

.0501 

.0601 - 

.0603 

.0802 

.0803 

.1101 - 

.1104- 

.1107 

.1108 

.1109 

.1110- 

.1112 - 

.1115 

.1201 - 

.1203 - 

.1206 

.1207 

.1208 

.1209- 

.0101 

.0202 

.0210 

.0404 

.0408 - 

.0411 - 

.0413 

.0402 

.0502 

.0507 - 

.0510 

.0519 

.0100- 



.0917 

.0203 
.0602 



,1103 
.1106 



1111 
II14 

1202 
1205 



1211 



.0409 
.0412 



.0508 



,0600 



/Vmended 

** Amended 

Adopted 

** Adopted 

♦* Adopted 

** Amended 

** Amended 

/Vmended 

** Amended 

Amended 

** Adopted 

** Amended 

Amended 

** Adopted 

Adopted 

** Adopted 

Adopted 

** Adopted 

Adopted 

** Adopted 

Adopted 

** Adopted 

Adopted 

** Adopted 

Adopted 

** Adopted 

Adopted 

Amended 

** Amended 

Adopted 

Amended 

** Amended 

** Adopted 

Adopted 

** Amended 

** Amended 

** Amended 

** Amended 

Amended 

Transferred and Recodifed from 

4 NCAC 19R .0100- .0600 

Eff. May 1, 1991 



DEPARTMENT OF LABOR 



13 



NCAC 



7C 
16 



.0101 
.0101 
.0102 
.0201 



Amended 
Adopted 
** Adopted 
** Adopted 



6:6 NORTH CAROLINA REGISTER June 14, 1 99 1 



315 



FINAL RULES 



.0202 Adopted 

.0203 - .0206 ♦* Adopted 

.0207 - .0208 Adopted 

.0301 ♦* Adopted 

.0302 Adopted 

.0303 ** Adopted 

DFPAKTMFNT OF FW IRONMF.NT. HF.XLJH, .AND NATLR.\L RFSOLRCES 

I5A NCAC 7J .0409 Amended 

IOC .0305 Temp. Amended 

Expires 11-01-91 

13A .0009 * Correction 

ISA .2517 - .2518 * Correction 

.2523 * Correction 

.2528 * Correction 

.2532 * Correction 

.2535 * Correction 

.2609 * Correction 

.2612 * Correction 

.2623 * Correction 

.2640 * Correction 

.2724 * Correction 

DEF\\RTMENT OF REVENL E 

17 NCAC 11 .0101 Amended 

.0102 Repealed 

.0103 .\mended 

.0201 - .0202 Amended 

.0203 - .0204 Repealed 

.0205 rVmcnded 

.0206 Repealed 

.0207 - .0209 Amended 

.0210 Repealed 

.0211 - .0212 .-Xmended 

.0215 Amended 

.0217 - .0219 Adopted 

DEPARTMENT OF TRANSPORT.\TIO\ 

19A NCAC 3D .0801 .\mended 

DFP \RTMENT OF STATE TRFA.SL RFR 

20 NCAC 3 .0305 Amended 

COMMISSION FOR Al CTIONFERS 

* Correction 
** Amended 



21 


NCAC 


4B 


.0201 
.0602 


BOARD OF 


COSMETIC ART EXAMINERS 


21 


NCAC 


141 


.0302 






14L 


.0210 


BOARD OF 


DENT A I 


EXAMINERS 


21 


NCAC 


16D 


.0101 



** Amended 
** .Amended 



.Amended 



ne 6:6 NORTH CAROLINA REGISTER June 14, 1991 



FINAL RULES 



BOARD OF LANDSCAPE ARCHITECTS 

21 NCAC 26 .0105 Amended 

BOARD OF MEDICAL EXAMINERS 

21 NCAC 32L .0001 Temp. Amended 

Expires 06-01-91 

.0005 Temp. Amended 

Expires 06-01-91 

.0009 Temp. Amended 

Expires 06-01-91 

DEPARTMENT OF COMMLMTY COLLEGES 

23 NCAC 2D .0109 ** Amended 



6; 6 NORTH CA ROLINA REGIS TER June 14, 1 99 1 317 



ARRC OBJECTIONS 



1 he Administrative Rules Review Commission (ARRC) objected to the following rules in accord- 
ance with G.S. l43B-30.2(c). State agencies are required to respond to ARRC as provided in G.S. 

l43D-30.2(d). 



AGRICULTURE 

Plant Industry 

2 NCAC 4SF .0306 - Collection and Sale of Venus Flytrap 
Agency Revised Rule 

ECONOMIC AND COMML^ITY DEVELOPMENT 

Banking Commission 

4 NCAC 3G .0203 - Expiration and Renewal 

Agency Revised Rule 
4 NCAC 3G .0502 - Annual Report 

Agency Revised Rule 
4 NCAC 3G .0601 - Revocation or Suspension; Hearings 

Agency Revised Rule 

Hazardous Waste Management Commission 

4 NCAC IS .0309 - Final Site 

Agency Returned Rule Unchanged 

EN^ IRONMENT, HEALTH, AND NATURAL RESOURCES 

Adult Health 

ISA NCAC I6A .0804 - Financial Eligibility 

No Response from Agency 

Agency Responded 

No Response from Agency 
ISA NCAC 16 A .0806 - Billing the HIV Health Services Program 

No Response from Agency 

Agency Responded 

No Response from Agency 

Coastal Management 

ISA NCAC 7 J .0409 - Civil Penalties 

Agency Returned Rule Unchanged 

Rule Returned to Agency 

Agency Filed Rule with O.tH 
ISA NCAC 7 J .1109 - Permit Fee 

Agency Withdrew Rule 

Environmental I lealth 

ISA NCAC ISA .2537 - Appeals 



ARRC Objection 4! IS/ 9 1 
Obj. Removed 4118/91 



ARRC Objection 3/21/91 

Obj. Removed 4/18/91 

ARRC Objection 3/21/91 

Obj. Removed 4/18/91 

ARRC Objection 3/21/91 

Obj. Removed 4/18/91 



ARRC Objection 1/18/91 
No Action 2/25/91 

ARRC Objection 4/18/91 



ARRC Objection 


I/I8/9I 




2/25/91 


No Action 


3/21/91 


No Action 


4/18/91 


ARRC Objection 


1/ 18/91 




2125/91 


No A ction 


3/21/91 


No Action 


4/18/91 


ARRC Objection 


1/ IS/91 


No A ction 


2i25/9l 


No A ction 


4/18/91 


Rule Eff 


6/1/91 


ARRC Objection 


1/ 18/91 




2125/91 



ARRC Objection 3/21/91 



3 IS 



6:6 NORTH CAROLINA REGISTER June 14, 1991 



ARRC OBJECTIONS 



Agency Responded 
15A NCAC 18A .2616 
15A NCAC 18A .2618 

Agency Responded 
15A NCAC 18A .2711 - Toilet Facilities 

Agency Responded 



Requirements for Employees 
Cleaning of Equipment and Utensils 



No Action 4/18/91 

ARRC Objection 4/18/91 

ARRC Objection 3/21/91 

No Action 4/18/91 

ARRC Objection 3/21/91 

No Action 4/18/91 



HUMAN RESOURCES 



Facility Services 






10 NCAC 3C .0914 - Defs Applicable/ Psychiatric/ Substance Abuse Svcs 
Agency Revised Rule 


ARRC Objection 
Obj. Removed 


4/18/91 
4/18/91 


10 NCAC 3 J .2401 - Requirement for Operations Manual 
Agency Revised Rule 


ARRC Objection 
Obj. Removed 


4/18/91 
4/18/91 


10 NCAC 3T .0102 - Definitions 
Agency Revised Rule 


ARRC Objection 
Obj. Removed 


4/18/91 
4/18/91 


10 NCAC 3T .0603 - Home Health Aide Seryices 
Agency Re\ised Rule 


ARRC Objection 
Obj. Removed 


4/18/91 
4/18/91 


10 NCAC 3T .1101 - Administration 
Agency Revised Rule 


ARRC Objection 
Obj. Removed 


4/18/91 
4/18/91 


10 NCAC 3T .1112 - Design and Construction 
Agency Revised Rule 


ARRC Objection 
Obj. Removed 


4/18/91 
4/18/91 


10 NCAC3T .1114- Plumbing 
Agency Revised Rule 


ARRC Objection 
Obj. Removed 


4/18/91 
4/18/91 


10 NCAC 3T .1206 - Hospice Inpatient Fire and Safety Requirements 
Agency Revised Rule 


ARRC Objection 
Obj. Removed 


4118/91 
4/18/91 


Individual and Family Support 






10 NCAC 42B .1201 - Personnel Requirements 
No Response from Agency 
Agency Returned Rule Unchanged 


ARRC Objection 

No Action 


1/18/91 
2125/91 
3/21/91 


10 NCAC 42C .2001 - Qualifications of Administrator 
No Response from Agency 
Agency Returned Rule Unchanged 


ARRC Objection 
No Action 


1/18/91 
2/25/91 
3/21/91 


10 NCAC 42C .2002 - Qualifications of Super\'isor-in-Charge 
No Response from Agency 
Agency Returned Rule Unchanged 


ARRC Objection 
No Action 


1/18/91 
2i25i9l 
3/21/91 


10 NCAC 42C .2006 - Qualifications of Acti\ities Coordinator 
No Response from Agency 
Agency Returned Rule Unchanged 


ARRC Objection 

No Action 


1/18/91 
2,25/91 
3/21/91 


10 NCAC42C .3301 - Existing Building 
Agency Returned Rule Unchanged 


ARRC Objection 
No Action 


11/14/90 
12/20/90 


10 NCAC 42D .1401 - Qualifications of Administrator/Co-Administrator 
Agency Returned Rule Unchanged 


ARRC Objection 
No Action 


11/14/90 
12/20/90 


Social Services 






10 NCAC 24 A .0303 - Sel/ County Board Members/ Social Svcs Comm 
10 NCAC 39D .0202 - Conciliation Procedure 
Agency Revised Rule 


ARRC Objection 
ARRC Objection 
Obj. Removed 


4/18/91 
4/18/91 
4/18/91 


10 NCAC 39D .0408 - Participation Expenses 
Agency Revised Rule 


ARRC Objection 
Obj. Removed 


4118/91 
4/18/91 


10 NCAC 39D .0409 - One-Time Work Related Expenses 


ARRC Objection 


4, 18/91 



6:6 NORTH CAROLINA REGISTER June 14, 1991 



319 



ARRC OBJECTIONS 



A RRC Objection 4//8/9/ 
ARRC Objection 4//8/9J 
Obj. Removed 41/819/ 



ARRC Objection 41/8/9/ 

Obj. Removed 4//8I9/ 

ARRC Objection 41/819/ 

Obj. Removed 41/819/ 

ARRC Objection 4//8/9/ 

Obj. Removed 4//8/9/ 

ARRC Objection 41/819/ 

Obj. Removed 41/819/ 



Agency Revised Rule Obj. Removed 4//8I9/ 

/O NCAC 39D .041/ - Supportive Svcsj I Available in Non-JOBs Counties ARRC Objection 41/819/ 

Agency Revised Rule Obj. Removed 41/819/ 

JUSTICE 

NC Criminal Justice Education 

/2 NCAC 9B .030/ - Certification of Instructors 
/2 NCAC 9B .0302 - General Imtructor Certification 
Agency Revised Rule 

LABOR 

Migrant Housing 

/3 NCAC /6 .020/ - Conduct of Pre occupancy /nspections 

Agency Revised Rule 
/3 NCAC /6 .030/ - Provisional Occupancy 

Agency Revised Rule 
/3 NCAC /6 .0302 - Provisional Occupancy Denied 

Agency Revised Rule 
/3 NCAC /6 .0303 - /nspection of Provisionally Occupied Housing 

Agency Revised Rule 

LICENSING BOARDS AND COMMISSIONS 

Auctioneer's Commission 

2/ NCAC 4B .0602 - .Advertising 
Agency Revised Rule 

Cosmetic Art Examiners 

2/ NCAC /4l .0302 - Library 

.Agency Responded 

Agency Revised Rule 
2/ NCAC /4L .02/0 - Effect on Student-Teacher Ratio 

Agency Responded 

Agency Revised Rule 

Dental Examiners 

2/ NCAC /6C .0310 - Reexamination 

Agency Withdrew Rule 
2/ NCAC /6D .0/0/ - Eligibility Requirements 

Agency Revised Rule 

Medical Examiners 

2/ NCAC 32B .0309 - Personal Interview 
Agency Responded 

SECRETARY OF STATE 

Securities Division 



ARRC Objection 3/2/19/ 
Obj. Removed 4// 8/9/ 



ARRC Objection 2/25/9/ 

No Action 3/2/ /9/ 

Obj. Removed 4;/ 8/9/ 

ARRC Objection 2/25/9/ 

No Action 3/2/ /9/ 

Obj. Removed 41/8/9/ 



ARRC Objection 312//9/ 

4// 8/9/ 

ARRC Objection 3/2/ /9/ 

Obj. Removed 4//8/9/ 



ARRC Objection 2:25:9/ 
No Action 3/2/ /9/ 



320 



6:6 NORTH CAROLINA REGISTER June 14, 1991 



ARRC OBJECTIONS 



18 NCAC 6 .1210 - Securities Exchgs/Autod Quot. Sys. Approved/ Admin ARRC Objection 12/20/90 

Agency Responded to Objection No Action 1/18/91 

STATE PERSO^?sEL 

25 NCAC ID .0509 - Severance Salary Continuation ARRC Objection 1/18/91 
Agency's Response Unacceptable 2/25/91 



6:6 NORTH CAROLINA REGISTER June 14, 1991 321 



RULES INVALIDA TED BY JUDICIAL DECISION 



Th 



his Section of the Register lists the recent decisions issued by the North Carolina Supreme Court, 
Court of Appeals. Superior Court (when available), and the Office of Administrative Hearings which 
irn-alidate a rule in the Sorth Carolina Administrative Code. 



10 SCAC 261 .0101 - PURPOSE: SCOPEjSOTICE OF CHA\GE L\ LEVEL OF CARE 

10 SCAC 261 .0102 - REQUESTS FOR RECOSSIDERA TIO\ A.\D RECIPIENT APPEALS 

10 .\CAC 261 .0104 - FORMAL APPEALS 

Thomas R. West, Administrative Law Judae with the Office of Administrative Hearings, declared Rules 
10 NCAC 261 .0101, 10 NCAC 261 .0102 and 10 NCAC 261 .0104 void as applied in Linda Allred, 
Petitioner v. North Carolina Department of Human Resources, Division of Medical Assistance, Re- 
spondent (90 DHR 0940). 

10 .\CAC 421V .0003(c) - COUNTY DEPT OF SOCIAL SERVICES RESPONSIBILITIES 
10 NCAC 42\V .0005 - REPORTING CASES OF RAPE AND INCEST 

The North Carolina Court of Appeals, per Judge Robert F. Orr, declared Rules 10 NCAC 42W 
.0003(c) and 10 NCAC 42\V .0005 void as applied in Rankm Whittington, Daniel C Hudgins, Dr. Takey 
Crist, Dr. Gwendolyn Boyd and Planned Parenthood of Greater Charlotte, Inc., Plaintiffs v. The North 
Carolina Department of Human Resources, David Flaherty, in his capacity as Secretary of the North 
Carolina Department of Human Resources, The North Carolina Social Services Commission, and C 
Bany McCarty, in his capacity as Chairperson of the North Carolina Social Services Commission, De- 
fendants [100 N.C. App. 603, '398 S.E.2d 40 (1990)). 

16 NCAC6D .0105 - USE OF SCHOOL DA Y 

The North Carolina Supreme Court, per Associate Justice Henr\' E. Fr>e, held invalid Rule 16 NCAC 
6D .0105 as decided in The State of North Carolina; The North Carolina State Board of Education: and 
Boh Ethcridge. State Superintendent of Public Instruction. Plaintiffs v. Whittle Communications and The 
Thomasville City Board of Education, Defendant- Countcrclaimants and The Da\idson County Board of 
Education, Defendant- Intervenor and Counterclaimant v. The State of North Carolina: The North 
Carolina State Board of Education: and Bob Etheridge, State Superintendent of Public Instruction; and 
Howard S. Haworth; Barbara M. Tapscott; Kenneth R. Harris; Teena Smith Little; W.C. Meekins Jr.; 
Mary B. Morgan; Patricia H. Neal; Cary C. Owen; Donald D. Pollock; Prezell R. Robinson: Norma 
B. Turnage; Stale Treasurer Harlan E. Boyles; and Lt. Governor James C Gardner; in their official 
capacities as members of The North Carolina State Board of Education, Counterclaim Defendants [328 
N.C. 456, 402 S.E.2d 556 (1991)]. 

15A NCAC 7H .0308 - SPECIFIC USE STANDARDS 

The North Carolina Court of Appeals, per Judge Sidney S. Eagles Jr., held that it was error for the 
Coastal Resources Commission to fail to follow the required notice and comment procedure prior to 
the adoption of temporary- rule 15A NCAC 7H .0308(a)(l)(-\l), but that the CRC followed proper 
procedures when it adopted the text of the temporary' rule as a permanent rule [15A NCAC 7H 
.030S(a)( 1)(.\I)]. Conservation Council of North Carolina v. Haste [102 N.C. App. 41 1, 402 S.E.2d 447 
(1991)]. 



322 6:6 NORTH CAROLINA REGISTER June 14, 1991 



NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 



The North Carolina Administrative Code ( NCAC) has four major subdivisions of rules. Two 
of these, titles and chapters, are mandatory. The major subdivision of the NCA C is the title. 
Each major department in the North Carolina executive branch of government has been as- 
signed a title number. Titles are further broken down into chapters which shall be numerical 
in order. The other two, subchapters and sections are optional subdivisions to be used by 
agencies when appropriate. 

TITLE/MAJOR DI\'ISLONS OF THE NORTH CAROLINA ADMESISTRATrVT CODE 



TITLE DEPARTMENT 

1 Administration 

2 Agriculture 

3 Auditor 

4 Economic and Community 

Development 

5 Correction 

6 Council of State 

7 Cultural Resources 

8 Elections 

9 Governor 

10 Human Resources 

1 1 Insurance 

12 Justice 

1 3 Labor 

14A Crime Control and Public Safety 

15A Environment, Health, and Natural 
Resources 

16 Public Education 

17 Revenue 

18 Secretary of State 
19A Transportation 
20 Treasurer 

*21 Occupational Licensing Boards 

22 Administrative Procedures 

23 Community Colleges 

24 Independent Agencies 

25 State Personnel 

26 Administrative Hearings 



LICENSrSG BOARDS 


CHAPTER 


Architecture 


2 


Auctioneers 


4 


Barber Examiners 


6 


Certified Public Accountant Examiners 


8 


Chiropractic Examiners 


10 


General Contractors 


12 


Cosmetic Art Examiners 


14 


Dental Examiners 


16 


Electrical Contractors 


18 


Foresters 


20 


Geologists 


21 


Hearing Aid Dealers and Fitters 


22 


Landscape Architects 


26 


Landscape Contractors 


28 


Marital & Family Therapy 


31 


Medical Examiners 


32 


Midwifery Joint Committee 


33 


Mortuary Science 


34 


Nursing 


36 


Nursing Home Administrators 


37 


Occupational Therapists 


38 


Opticians 


40 


Optometry 


42 


Osteopathic Examination and 


44 


Registration (Repealed) 




Pharmacy 


46 


Physical Therapy Examiners 


48 


Plumbing, Heating and Fire Sprinkler 


50 


Contractors 




Podiatry Examiners 


52 


Practicing Counselors 


53 


Practicing Psychologists 


54 


Professional Engineers and Land Surve> 


ors 56 


Real Estate Commission 


58 


Refrigeration Examiners 


60 


Sanitarian Examiners 


62 


Social Work 


63 


Speech and Language Pathologists and 


64 


Audiologists 




Veterinary Medical Board 


66 



Note: Title 21 contains the chapters of the various occupational licensing boards. 



6:6 NORTH CAROLINA REGISTER June 14, 1991 



323 



CUMULA TIVE INDEX 



CUMULA TIVE INDEX 

(April 1991 - March 1992) 



1991 - 1992 



Pages 



Issue 



1 - 44 1 - April 

44 - 99 2 - April 

100 - 185 3 - May 

186 - 226 4 - May 

227 - 246 5 - June 

247 - 325 6 - June 



AO - Administrative Order 

AG - Attorney General's Opinions 

C - Correction 

FR - Final Rule 

GS - General Statute 

JO - Judicial Orders or Decision 

IVI - Miscellaneous 

NP - Notice of Petitions 

PR - Proposed Rule 

SO - Statements of Organization 

TR - Temporary Rule 



ADMIMSTRAITVE HEARINGS 

Hearings Division, 310 PR 

AGRICLLTLRE 

Plant Industry, 102 PR 

CORRECTION 

Division of Prisons, 35 FR, 87 FR, 209 FR 

ECONOMIC AND COMMUNITY DEVELOPMENT 

Alcoholic Beverage Control Commission, 4 PR 
Community Assistance, 104 PR 
Credit Union Division, 231 PR 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Coastal Management, 299 PR 

Environmental Management, 197 PR, 271 PR 

Forest Resources, 300 PR 

Health: Fpidemiology, 28 PR 

Health Services, 9 PR 

Marine Fisheries, 122 PR 

Wildlife Resources Commission, 84 PR, 170 PR, 198 PR, 301 PR 

FINAL DECISION LETFERS 

Voting Rights Act, 48, 230, 248 



n4 



6:6 NORTH CAROLINA REGISTER June 14, 1991 



CUMULA TIVE INDEX 



FINAL RULES 

List of Rules Codified, 89 FR, 215 FR, 314 FR 

GO\ ERNOR/LT. GOVERNOR 

Executive Orders, 1, 45, 100, 186, 227, 247 

HUMAN RESOURCES 

Aging, Division of, 72 PR 

Facility Services, 104 PR 

Medical Assistance, 9 PR, 112 PR, 188 PR, 232 PR, 250 PR 

Mental Health, Developmental Disabilities and Substance Abuse Services, 5 PR, 49 PR 

Social Ser\'ices, 1 16 PR 

EVSURANCE 

Actuarial Services, 119 PR 
Special Services Division, 84 PR 

JUSTICE 

Private Protective Services, 121 PR 
State Bureau of Investigation, 250 PR 

LICENSING BOARDS 

Architecture, Board of, 30 PR, 232 PR 
Certified Public Accountant Examiners, 201 PR 
Medical Examiners, Board of 304 PR 
Nursing, Board of 305 PR 
Pharmacy, Board of 201 PR 
Physical Therapy Examiners, Board of 33 PR 
Practicing Psychologists Examiners, 203 PR 
Real Estate Commission, 171 PR 

PUBLIC EDUCATION 

Elementary and Secondar,', 29 PR, 199 PR, 303 PR 

REVENUE 

Individual Income Tax Division, 234 FR 
Property Tax Commission, 210 FR 

SECRETARY OF STATE 

Securities Division, 85 PR 

STATE PERSONNEL 

State Personnel Commission, 172 PR 

TRANSPORTATION 

Division of Motor Vehicles, 213 FR 



6:6 NORTH CAROLINA REGISTER June 14, 1991 325 



NORTH CAROLINA ADMINISTRATIVE CODE 

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